When to Hire a Probate Lawyer

By: Suzanne R. Fanning

If someone close to you has died and their will puts you in charge of administering their estate, you have probably been told that the first thing you should do is hire a probate lawyer. Similarly, if a loved one has died without a will in Michigan, you may be at a loss as to what to do next, and conclude that you need the help of a probate attorney. 

In both cases, you are probably right. The probate process is probably unfamiliar and can be complicated. A Michigan probate attorney who has helped hundreds of families with probate can often be a helpful guide through the process.

That said, there are times when a probate lawyer is essential to help you deal with Michigan probate laws and process, and times where you may be able to figure things out on your own. Let’s talk a little bit about what a probate lawyer does, when you need one, and when you may be able to figure out probate on your own.

What Does a Probate Attorney Do?

Probate is the court-supervised process of administering the estate of a deceased person, also known as a decedent. Probate involves proving the will (if one exists is valid), appointing an executor (if one is named in a will) or an administrator (if there is no will). Executors and administrators are also known as the “personal representative” of the estate. 

The personal representative’s job is to make sure that all of the decedent’s property is identified, located, valued, and accounted for. The personal representative must also notify all heirs who might be entitled to that property and creditors who might be owed money by the estate. Sometimes, there will not be enough money in the estate to pay all debts, so the personal representative must make sure that debts are paid in the proper order. There will also be tax returns to file on behalf of the estate, and inventory fees and documentation to file with the probate court to show that the personal representative is properly fulfilling their obligations.

A probate lawyer advises and assists the personal representative with these obligations, especially those involving the preparation and filing of legal documents. A probate lawyer may also assist the personal representative with collecting life estate proceeds, obtaining appraisals of any real property or valuables that are part of the estate, resolving income tax issues, and more.

When Do I Need a Probate Lawyer?

As a general rule, the larger or more complicated the estate, the more likely you will need the help of a probate lawyer to successfully administer it. Here are some circumstances in which you should at least consult, and probably retain, a probate attorney:

• If family members are not getting along, or you anticipate there may be any kind of dispute about the estate or the validity of the will;
• If the identity or location of certain heirs is unknown;
• If the estate contains real property (including timeshares) in multiple states or countries;
• If the estate contains complex assets, such as closely-held or restricted stock, partnership or LLC interests, intellectual property, or royalties;
• If the estate might owe estate tax (over 99.7% of estates do not owe federal estate tax, but more may owe estate tax at the state level);
• If there is not enough money in the estate to pay all debts; you may need a probate lawyer to help you understand which debts should be given priority;
• If you are the personal representative (or need to be appointed to that role) and live in a different state from the one in which the decedent last resided and where the estate is being administered;
• If you are confused about your obligations as personal representative and need the guidance of someone familiar with the process. 

As a general rule, the services of a probate attorney are considered a benefit to the estate, and can be paid out of estate funds rather than out of the personal representative’s own pocket. In other words, if you need to probate a Michigan estate and need an attorney’s help, don’t hesitate just because you are concerned about attorney fees. 

When You May Not Need a Lawyer for Estate Administration

There are some circumstances in which the services of a probate lawyer may not really be needed, because the probate estate is small enough that administration is simple and straightforward. These include:

• When the decedent created an estate plan designed to minimize the probate estate, such as holding real property as joint tenants with right of survivorship (surviving owner automatically takes ownership of property) and placing most assets in trusts (property in a trust passes outside of probate according to the terms of the trust document).
• When the probate estate is small enough (less than $24,000 in 2020) to qualify for simplified processes such as assignment of property or transfer by affidavit.
• When there is only one or a few heirs or beneficiaries of the estate, all of whom get along, and the estate is not otherwise complicated. 

The time after the death of a loved one is emotionally difficult, and the need to probate an estate can add a burden of stress on top of that. Often, retaining a probate attorney can relieve that stress. An ethical probate attorney will not provide, or bill the estate for, services that are not needed, so if you think you might want a probate attorney’s help, schedule a consultation. We invite you to contact our law office with any questions or if you need help.