Estate settlements do not always need an attorney. The tricky part comes in when an estate requires a probate hearing. In those cases, an experienced lawyer with knowledge of state probate laws can help eliminate friction and reduce the stress of more complex procedures. If you’re the executor of an estate and are encountering difficulties, or if you’re not sure of your responsibilities, you should consult an attorney. Even honest, well-meaning executors can run afoul of legal requirements. It is best to get legal advice before this happens. Dealing with it afterward can be complicated and costly.
When You Don’t Need an Attorney
- Essentially, you can do without an attorney if the estate settlement does not require a probate hearing.
- Assets of the deceased are clearly stated in a Will or Trust.
- Everything goes directly to a spouse or other beneficiary.
- Assets have been placed in and are protected by a Living Trust.
- Proceeds from insurance policy payouts and retirement accounts are directly transferred to a named beneficiary.
- Estate qualifies for ‘small estate’ procedures.
- Estate doesn’t contain business or complicated assets.
- No one is fighting or contesting the estate.
- Estate has enough assets to pay its debts.
- No state or federal taxes are owed.
In essence, most simpler estates do not require the help of an attorney. However, even estates without huge assets can run into problems for a variety of reasons, including wills contested by family members and creditors.
Why Executors Need an Attorney?
Cases requiring probate hearings need the services of attorneys familiar with state laws. They function in other ways to smooth the probate process that can quickly get out of hand.
- Ameliorate and act as a mediator in family conflict; reduce incidents of costly litigation
- Shorten the probate process through legal access to various elements
- Prevent claims against the estate
- File all required documents in proper legal format
- Reduce the chances of probate filing rejection
- Answer legal questions about the estate
- Handle debt payment to the client’s best advantage; avoid overpayment
- Avoid third-party delays; speed the process
Best Case Scenario
It’s always best if no probate is required. If it does, an estate attorney determines whether ‘small estate procedures’ are applicable. In most states, these include streamlined ‘summary probate,’ an entirely out-of-court process. Summary probate requires a simple sworn statement (affidavit) from the person or institution holding the asset. Every state has its own rules on which estates can use the streamlined procedures. Many places allow large estates to use the simplified process.
Texas has a simplified probate process for small estates. To use it, an executor, or their attorney files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without wading through the legal mire of regular probate.
Contact Our Offices Today!
We specialize in estate and probate law. If you have any questions about Texas probate law, how to file, or whether you need to, call us now. Consultations are free. The Voeller Law Firm, located at 19311, FM 2252, Suite 103, San Antonio, Texas 78266. (210) 651-3851