Do I Need an Attorney to Probate an Estate?

If you’ve a family member who has died, or if you’ve been named as the executor of an estate, you likely have a myriad of questions. Among these likely is wondering whether you need to retain a lawyer to probate an estate. In regard to this question, there are a number of considerations to bear in mind.

Will Probate Be Necessary?

The first question you need to ask when a person passes on is whether the formal probate process will be necessary. There may be some work to be done to deal with a person’s property after death, but the deceased person’s assets may be addressed in such a way that initiating the probate process may not be necessary.

For example, if a deceased person owned a home jointly with someone else, that property can pass to another person if the title includes not only joint ownership but a right of survivorship. Another example is a situation in which a deceased person established a trust during his or her life.

If during a deceased person’s life he or she set up mechanisms to address the conveyance of assets after death, the probate process may be entirely unnecessary. If the probate process is unnecessary because other mechanisms are in place to deal with the deceased person’s assets, the engagement of an attorney may be unnecessary. In theory, the legal niceties associated with these conveyances should all be in place.

Is There a Last Will and Testament?

The next question that needs to be asked when considering the need for a lawyer in the probate process is whether or not there is a last will and testament in place. If there is no will, and there are assets that need to be conveyed and distributed through the probate process, an estate will need to be opened in the local probate court.

Jurisdictions across the United States, including in state of California, have developed standard forms for probate cases. These forms are available to “open” an estate in your local probate court, including a case with a will or one without. With that said, if the probate process is expected to be more complicated, you may not want to go a route without counsel, trying to rely on standard forms.

The reality is that not only do you need appropriate documents to pursue the probate process, you need to understand how the court process itself works and how to maneuver through it. The fact is that many attorneys would never consider involving themselves in the probate process because it is quite complex.

Can a Simplified Estate Process Be Used?

California has what is called a simplified probate process for cases that are not complicated, don’t involve real estate, and have a moderate amount in the way of assets. If this process is available to you, foregoing legal representation certainly may be a possibility. Indeed, in many ways the California simplified probate process is designed in a manner to permit an executor or administrator the possibility of probating an estate without the added expense of engaging an attorney. (Keep in mind the estate and not the executor or administrator – or anyone else – is responsible for any legal expenses associated with the probate of an estate.)

Is the Estate Being Contested?

A major consideration that has a direct bearing on engaging legal counsel for the probate process is whether or not the will or estate itself is being contested. Contested estates are not particularly commonplace. With that said, when someone contests a will or an estate more generally, a complicated legal process commences.

If a person has a valid legal reason to contest a will (or estate), defending against the matter triggers a complex legal process. Even seasoned probate attorneys recognize a legally supportable challenge to a will (or estate) requires skill and experience to defend. The reality is that a person without legal training simply doesn’t have the background necessary to defend a challenge to a will or estate.

Final Thoughts on Hiring a Probate Attorney

There is an old cliché that “a person who is his own lawyer has a fool for a client.” As noted, there are some very limited instances in which a person may be able to work through the probate process successfully without legal representation. However, overall the formal probate process is complicated – both in regard to the law and court procedure. As a consequence, an executor or administrator of an estate needs to give sober consideration to the need to hire a capable probate attorney.

The typical reason a probate attorney is not retained is to save money. Statistics suggest that mistakes made in the probate process undertaken without legal representation can prove to be far more costly than the amount paid – by the estate – in the way of attorney fees.