Does Every Executor Need a Lawyer?

Many executors are able to wrap up an estate themselves, without hiring a lawyer.

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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 practice. 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.

Here are some circumstances that make you a good candidate for handling the estate without a professional at your side. Not every one of them needs to apply to your situation—but the more that do, the easier time you will have.

Most or all of the deceased person’s property can be transferred without probate. The best-case scenario is that you don’t need to go to probate court, because assets can be transferred without it. This depends on the planning the deceased person did before death—you can’t affect it now. But you won’t need probate if all estate assets are held in joint ownership, payable-on-death ownership, or a living trust, or if they pass through the terms of a contract (like retirement accounts or life insurance proceeds).

Learn more about what property must go through probate.

The estate qualifies for simple “small estate” procedures. No probate is best, but simple or “summary” probate is better than regular probate. Whether or not the estate qualifies for the summary procedure depends on state law. A few states let estates worth a couple of hundred thousand dollars—not counting nonprobate assets—use the simpler process.

If probate is necessary, the state has a relatively simple process. Probate is easier in states that have adopted the Uniform Probate Code (a set of laws designed to streamline probate) or have simplified their own procedures.

Learn about probate in Uniform Probate Code states.

The estate doesn’t contain a business or other complicated asset. Managing, appraising, and selling a business are all tasks that require some expertise and experience. You’ll probably want expert advice.

No one is fighting. If disgruntled family members are threatening a lawsuit over the will, get a lawyer’s help right away. You may be able to head off a court fight—which will consume more money and time than you can probably imagine—or at least figure out how to win it.

The estate has enough assets to pay its debts.  In this case, you don’t have to worry about paying legitimate debts—there will still be money left over for the inheritors. But if it looks like there won’t be enough money in the estate to pay debts and taxes, get advice before you pay any creditors. State law will set out the order in which creditors get priority, and it’s not always easy to figure out how to parcel out the money.

The estate won’t owe either state or federal estate tax. More than 99% of estates don’t owe federal estate tax, so this isn’t likely to be an issue. But around 20 states now impose their own estate taxes, separate from the federal tax—and many of these states tax estates that are valued at $1 million or larger. If you will be responsible for filing an estate tax return with the state where the deceased person lived or owned real estate, you should get legal and tax advice. An estate tax return is not a do-it-yourself job.

Learn More

If you're serving as an executor and unsure about hiring an attorney, check out this page on Legal Help for Executors. You'll find helpful articles on using a lawyer in various capacities, or not at all.

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