if you have a will do you still need a lawyer when settling an estate

by Prof. Tania Sauer II 10 min read

Whether it’s authorized by state law or by the will or trust document, you’ll almost always be able to use estate or trust funds to pay for a lawyer or other expert assistance. Still, not all executors or trustees need or choose to hire experts.

Many executors decide, sometime during the process of winding up an estate, that they could use some legal advice from a lawyer who's familiar with local probate procedure . But if you're handling an estate that's straightforward and not too large, you may find that you can get by just fine without professional help.

Full Answer

Do I need a lawyer to wind up an estate?

Do I need a lawyer to settle an estate without a will? No. However, as the value of the estate exceeds $500,000, it becomes prudent to work with a probate lawyer , if only to reduce the risk of mistake and future litigation.

Is it possible to settle an estate without a will?

Sep 10, 2020 · Ultimately, if you find your loved one’s estate too large or have trouble understanding probate law, you may benefit from hiring a lawyer for probate. That said, many wills are incredibly simple. First, contested wills are much rarer than you’d think.

How to settle an estate if you are the executor?

Jul 29, 2019 · When You May (or May Not) Need a Probate or Estate Administration Lawyer. Whether it’s authorized by state law or by the will or trust document, you’ll almost always be able to use estate or trust funds to pay for a lawyer or other expert assistance. Still, not all executors or trustees need or choose to hire experts.

Do I need a trust attorney to settle a living trust?

When You May (or May Not) Need a Probate or Estate Administration Lawyer. Whether it’s authorized by state law or by the will or trust document, you’ll almost always be able to use estate or trust funds to pay for a lawyer or other expert assistance. Still, not all executors or trustees need or choose to hire experts.

What is the first step in settling an estate?

The first step (and one of the most important ones) in the process of settling an estate is getting organized . You’ll want to keep track of both your expenses and all the time you spend working on settling the estate, as you’re entitled to be compensated. You should look for a Will.

What is the Real Estate Settlement Procedures Act?

The Real Estate Settlement Procedures Act (RESPA) is a Federal law that dictates how lenders operate and requires borrowers be provided with appropriate disclosures about the costs and nature of the settlement process. It also prohibits things like kickbacks and limits how escrow accounts are used.

What happens if you co-own a house?

If the house was co-owned with right of survivorship, the property would automatically go to the surviving partner’s name. If it was co-owned without right of survivorship, the title would then pass as the Will or Estate Plan document states.

Is estate planning complicated?

Estate Planning can be complicated or it can be simple. But regardless of how complex an estate is, establishing what happens to it once you pass away is important. Because when the time comes for it to be settled, you want the process to be as efficient and effective as possible.

What does it mean to settle an estate?

What does it mean to “settle an estate”? When a person passes away, their assets must be distributed to their family, heirs, or beneficiaries according to the person’s will or trust.

How long does it take to settle an estate?

If you’re settling an estate by yourself for the first time, and there is no will, it can take as few as 12 but likely as many 36 months to settle the estate, depending on the size and complexity of the estate, its assets, creditors, etc. Smaller estates may be settled faster. As the value of the estate increases, the time frame will vary, based on any number of factors, including: 1 Multiple real estate properties 2 Business interests 3 High-value, personal assets 4 Surviving spouses 5 Surviving ex-spouses 6 Surviving children, step-children, and adopted children 7 Extensive debts 8 Taxes owed 9 Creditor claims

What is probate attorney?

Regardless of whether you are the administrator of an intestate estate (no will), executor of a will, or trustee of a trust, a probate attorney is a vital resource to ensure the administrator is completely properly, timely and while avoiding unnecessary costs and delay.

Is probate legal advice?

It depends. The courts try to help move cases along. Probate is no exception. That being said, the courts are not there to and judges will not provide legal advice. If you are an administrator or executor who is having problems, or if you are a beneficiary or heir of an estate that is stuck, contact counsel.

What happens if a decedent owns a property?

For example, if the decedent owned real estate property and is survived by multiple children who don’t want to share ownership of the property, then the property likely will need to be sold and the proceeds shared amongst heirs , as prescribed by probate code.

Can you avoid probate if you have a small estate?

Or, if the value of the estate is under $150,000 and the estate does not own real property like a house or condo, then probate can be avoided through the use of a Small Estate Affidavit.

Is probate expensive?

The probate process is long and sometimes seems overwhelming. It’s also very expensive, A People’s Choice saved me thousands of dollars as compared to an attorney. I would highly recommend A People’s Choice for your probate needs. It’s cost effective, and they handle the entire process from beginning to end!”.

Can an estate avoid probate?

Additionally, some estates can actually avoid probate altogether! For instance, for estates of a certain size, California offers “small estate” probate procedures. These legal proceedings often avoid the probate process and facilitate the distribution of assets within a 40-day period.

Can a lawyer help with probate?

Ultimately, if you find your loved one’s estate too large or have trouble understanding probate law, you may benefit from hiring a lawyer for probate.

Who can help with estate administration?

Lawyers aren’t the only experts who can help you with estate administration work. You may turn to other types of professionals for assistance with particular tasks, including: accountants or other tax professionals. appraisers . financial advisors. real estate or stock brokers, and. paralegals or legal document preparers.

What is a small estate?

Smaller estates are less likely to involve some of the complications that call for expert advice or assistance, such as when: someone is threatening to contest the will or trust in court. the estate includes a business, commercial real estate, or unusual assets that may be difficult to distribute among beneficiaries.

Do you have to pay for probate?

Even though you don’t have to pay the cost of hiring a probate or estate administration lawyer out of your own money, it’s your responsibility as the executor or trustee not to waste estate funds. (You’re also likely to be a beneficiary yourself, which provides even more incentive to save money for the estate.)

Do estates owe taxes?

the estate may owe state or federal estate taxes, or. a complex or ongoing trust needs to be administered, such as a trust for minor children or a special needs trust. Also, states have simplified shortcut probate procedures for settling small estates.

Why do people use living trusts?

Using a Living Trust to Avoid Probate. It helps to understand what your loved one was trying to accomplish by using a living trust. When an individual dies, he or she leaves behind an estate that consists of all assets owned by the decedent at the time of death. Those assets are broadly divided into two categories – probate and non-probate assets.

What to do after death of a loved one?

Following the death of a loved one, one of the first practical tasks is to locate estate planning documents, such as a Last Will and Testament or a trust agreement. If you recently lost a loved one and have located a trust agreement that names you as the successor Trustee of the trust, you may be wondering if you need the assistance of a trust attorney in order to administer and settle the trust. To make that determination, consider the following factors:

How to contact Hedeker Law?

If you have questions or concerns regarding settling a living trust, contact an experienced trust attorney at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment. Author.

Who is Dean Hedeker?

Dean Hedeker is a leading Chicago-area authority on estate and tax planning, business law and investments. A long-time resident of north suburban Lincolnshire, Dean has more than 35-years experience helping business owners and families grow, protect and pass on their hard-earned money through tax planning, estate planning and investment management services.

Can a trust be distributed after death?

Non-probate assets, on the other hand, can be distributed to the intended beneficiaries immediately after the dece dent’s death. Not surprisingly, avoiding probate is a common estate planning goal. Because trust assets are non-probate assets, the use of a living trust to accomplish this goal is also common.

Do you need an attorney to distribute a trust?

Are the assets to be distributed outright? If all you are required to do is oversee the distribution of the trust assets right away, you may not need an attorney. If, however, the beneficiaries are to receive staggered disbursements, or they are to receive their inheritance in a trust, you will need the help of a trust attorney.

Is a trust a beneficiary?

Is the trust a beneficiary? Sometimes, a trust itself is also a beneficiary of a life insurance policy or retirement account. When that is the case it complicates the task of settling the trust and calls for the assistance of an attorney.

What happens if an estate goes through probate?

If the estate goes through probate, you'll have to send very particular kinds of notices to a certain group of people. Whether or not there's a court proceeding, it's always a good idea to be in regular communication with beneficiaries.

What happens if you leave a will and a living trust?

If the deceased person left both a will and a living trust, as many people do, you'll need to work closely with your counterpart who's in charge of trust assets, the successor trustee. A living trust is like a will in that it lets someone leave property to named beneficiaries.

Why do you need a thorough inventory?

In any case, it will help you keep track of valuables, determine how you can transfer different items (because you'll note how title to assets is held), divide property among beneficiaries who are supposed to get equal shares (typical with siblings), and determine whether or not the estate will owe state or federal estate tax.

Do you file taxes for a deceased person?

You'll need to file income tax returns for the deceased person and possibly for the estate. The deceased person's tax preparer can be a big help here. If the estate was very large – over $5 million -- you may also need to file estate tax returns.

What happens if you don't have a safe deposit box?

If there's a safe deposit box, even if you don't have a key you will be allowed to open it for the sole purpose of looking for the will. If there is no will, property will pass through intestate succession. 2. File the will with the local probate court.

What happens when probate is closed?

When the debts and taxes are paid, when the probate (if any) is closed, your last job is to distribute property to the people who inherit it under the will or state law. (Then congratulate yourself for a job well done.)

Do you have to pay bills out of your pocket?

You're responsible for paying legitimate bills, as there is enough money in the estate to pay them. You don't have to pay the deceased person's debts out of your own pocket. If you think there won't be enough money to go around, stop paying bills—and get some guidance from the court or an attorney about which debts should take priority.

What happens if you don't have a will?

When there is no will. “If you don’t have a will, your estate will wind up in probate. ”. This all-too-common warning is generally true. No-will estates usually fall under intestate succession laws which can vary from state to state. So, when there is no valid will to name an estate executor, in most states and cases it’ll be necessary for ...

What happens if there is no will?

However, if there is no will or it fails to name any beneficiaries, then it’s up to the probate court to decide what happens to the estate.

Why is probate necessary?

In any of these scenarios (and others), probate becomes necessary to deal with the problems of an incorrect, invalid, or contested will. So, if you’re someone’s beneficiary, don’t wait until your loved one passes away when it’s too late to fix any probate-triggering problems that might arise.

How to avoid probate?

These are the three main ways for estates of any size to avoid probate: 1. With a living trust. One of the most common and recommended ways to transfer real estate to your beneficiaries without the help of probate court is with a living trust.

When is a living trust needed?

2. When there’s joint tenancy in place. A living trust isn’t needed when two spouses own a home together in joint tenancy. “If a couple is holding a property as joint tenants and one spouse passes away, then it avoids probate because they have the rights of survivorship,” explains Kittle.

Is probate a complex process?

The probate process is complex —which is why some states have adopted laws to simplify or remove probate requirements for small or low-value estates. For example, estates in California that are valued at $150,000 or less may qualify for a simplified probate process, or even be eligible to skip it altogether.

Can you skip probate?

When (and how) you can avoid probate. Estates that are small in size and value aren’t the only ones that can skip the probate process—if the decedent makes estate planning arrangements to avoid the painful process before they pass away. These are the three main ways for estates of any size to avoid probate: 1.