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Do You Need a Lawyer to Probate a Will?

Posted on: May 12th, 2017
consultationExecutors are not legally required to retain a lawyer for estate administration. Many state-provided resources are available to executors; estate procedures prepared by the states our probate attorneys practice in are as follows:

However, when an executor chooses to manage the probate process independently, they increase their chance of errors and, subsequently, their liability. Whether or not an executor retains probate counsel, the executor remains personally liable for errors that arise out of the course of their duties. It is in their best interest to act sensibly and acquire legal guidance. Some matters to consider:
  1. Tax issues. Federal and state tax matters must be addressed accurately and by firm deadlines. The types of assets passing through probate will affect tax implications. Unusual assets such as collectibles could prompt unique tax management concerns. Retirement accounts named in a will that were not held in trust or lacked current beneficiary designations will be part of the probate estate and included in the decedent’s taxable estate. Any assets accruing post-mortem income will need to be documented on the income tax return for the estate. Additionally, estate tax basis reporting requirements changed in recent years. As of this writing, basis statements are due within 30 days after the estate tax return deadline.
  2. Will contests and disputes. Ambiguous or poorly drafted terms in a will, multiple versions of a will, or concerns of undue influence might lead a surviving family member to contest the document. In these circumstances, legal counsel can help the executor understand statutory requirements, case law, and strategies to manage the dispute in and out of court.
  3. DIY will issues. If the decedent used an online template or other do-it-yourself estate planning service, the document likely has poorly drafted provisions that do not reflect the latest legislation. Executors should anticipate issues that might arise in an estate involving a DIY will and prepare accordingly. 

Complexities inherent in certain estates may not be initially apparent, especially to an inexperienced executor. While executors can find numerous resources online—even our probate attorneys maintain a free legal library with an inventory of guides specifically addressing estate administration issues—no combination of how-to books and online resources will adequately compare to a consultation with a lawyer. Gather as much information as possible and be prepared when meeting with an attorney.
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