Do I Need an Attorney in Probate Court?

Do I Need an Attorney in Probate Court?

Everyone has heard of probate.  We are vaguely sure that it deals with property and the courts, but what exactly is probate all about? 

You may also know that probate happens when someone dies and that it can be extremely expensive and take many years to resolve. 

The sad truth is that what you have heard about probate can be true. 

The two main difficulties with probate are that it can take up to a year to resolve itself in court, and for some people, probate involves the expensive advice of an attorney and court costs, neither of which may be necessary in the long run.

Getting advice from a attorney really serves no purpose in the probate process, except that the lawyers who work probate defend their position by claiming that their advice prevents fraud in dividing the property owned by the deceased among the heirs and that they handle the claims of all creditors fairly.  However, in most cases there are no major creditors who file claims against the estate and properties involved will go to a small number of family members.

What usually happens in probate?  If you hired a lawyer, then the lawyer may appear a few times, but more likely he or she will handle the case by mail.  The lawyer will charge you a fee, as high as 5 % of the estate.  Although the attorney charges this fee, he or she really does not have to do too much because probate cases do not require special drafting of legal documents, the resolution of conflicts in court, performing any real legal research, or any other excuse to appear in court.

What is really necessary in the probate process is the correct filling out and filing of forms in a timely manner, which is a job usually performed by the attorney's staff.  The attorney charges what the court deems as appropriate or reasonable or he may charge a percentage of the estate.  Even if the assets are tied up in real estate belonging to the deceased, the attorney's fees, appraiser's fees and any other expensive may require the beneficiaries to make out of pocket payments to settle the debts.  Therefore, if the estate in question is worth $500,000, the heirs would owe the attorneys up to $25,000, even if the estate is all property and no cash.  As an heir, you can try to negotiate the lawyer's fees help you lower the cost of probate.  However, the power to select an attorney is usually given to the executor of the estate, so as an heir, you would be under his or her mercy in the matter.

Because of the very real dangers of the potential cost of probate, many people want to avoid the pitfalls associated with probate.  There is extensive materials in the public law libraries concerning the probate system and how to do much of the work of probate yourself or how to require the executor of the estate to do the work.  Your executor can accomplish all of the tasks that an attorney would charge for, and then let his secretary or staff do.  However, the best idea is to avoid probate court altogether.  For information about how to avoid probate court, you should research information on the "Revocable Living Trust."