Will You Need to Hire a Probate Lawyer?

Not every executor needs a probate attorney. Here's what to ask yourself.

By , J.D. UC Berkeley School of Law
Updated 6/22/2022

If you've been tasked with setting the estate of a loved one, you might be wondering whether you'll need to hire a lawyer. If you read the conventional advice for executors and estate representatives, the first step is usually "hire a lawyer." What is a probate attorney anyway? A probate lawyer is someone who helps you guide an estate through the probate court process. When settling an estate, the list of tasks is long, and a probate attorney can usually help with all of them.

You may well decide, as you wind up an estate, that you want legal advice from an experienced lawyer who's familiar with both state law and how the local probate court works. Not all executors, however, need to turn a probate court proceeding over to a lawyer or even hire a lawyer for limited advice. If the estate that you're handling doesn't contain unusual assets and isn't too large, you might be able to get by just fine without a lawyer's help.

To determine whether or not you may be able to go it alone, ask yourself the questions below. (If you don't know the answers, ask a lawyer—before you agree to hire the lawyer to handle things for you.) The more questions you answer with a "yes," the more likely it is that you can wrap up the estate without a professional at your side.

    Can the Deceased Person's Assets Be Transferred Outside of Probate?

    The answer to this question depends on how much (if any) probate-avoidance planning the deceased person did before death. Ideally, all assets can be transferred to their new owners without probate court. Some common examples of assets that don't need to go through probate are:

    If most or all assets can be transferred outside of probate, your task as an executor might be very simple and straightforward.

    Learn more about probate avoidance.

    Does the Estate Qualify for Your State's Simple "Small Estate" Procedures?

    It's best if no probate at all is required, but if that isn't an option, figure out whether the estate can use "small estate" procedures. All states offer some probate shortcuts if the estate is particularly "small" in size (meaning the total amount of property is under a certain value) or if the estate is particularly simple. These shortcuts might mean streamlined probate procedures (often called "summary probate") or the option to use an entirely out-of-court process, like presenting a simple sworn statement (affidavit) to the person or institution holding the asset. Every state has its own rules on which estates can use these simpler procedures.

    Note that in some states, even estates that are fairly large in size can use these simpler processes for "small" estates, since some states allow you to exclude certain types of property when calculating the size of the estate.

    See "Avoiding Probate: The Small Estate."

    Are Family Members Getting Along?

    Will contests are rare, but if a family member is making noises about suing over the estate, talk to a lawyer immediately. Probate lawsuits tear families apart and can drain a lot of money from the estate in the process. A lawyer may be able to help you avoid a court battle.

    If Probate Is Necessary, Is Your State's Probate Process Relatively Simple?

    If the state where the deceased person lived has adopted a set of model laws called the Uniform Probate Code, probate should be pretty straightforward. In UPC states, most probates are conducted with minimal court supervision. A few other states have simplified their procedures even without adopting the UPC.

    To learn about probate in UPC and non-UPC states, and find out which group your state is in, see "How the Probate Process Works."

    Does the Estate Contain Complicated Assets?

    If the estate includes only common assets, like a house, bank or brokerage accounts, vehicles, and household goods, it can be a fairly simple estate to settle. Things get much more complicated when an estate includes a business, commercial real estate, or any other asset that requires special ongoing handling. You'll probably want to consult experts if you need to manage, appraise, or sell a business; these jobs aren't for amateurs.

    Is There Enough Money in the Estate to Pay Debts?

    If there's enough money to pay legitimate debts (for example, final income taxes, expenses of the last illness, and funeral costs), with some left over for beneficiaries under the will or state law, you won't have to figure out which debts to pay. If, however, your initial investigation reveals that there may not be enough money in the estate to pay debts and taxes owed by the deceased person, don't pay any bills before you get legal advice. State law gives some creditors priority over others.

    Is the Estate Too Small to Owe Either State or Federal Estate Tax?

    Federal estate tax is currently so high that you probably don't need to worry about that. There's a greater chance (though still a small one) that the estate will owe a separate state estate tax to the state where the deceased person lived or owned real estate. Thirteen states impose their own estate taxes, and a few of them impose the tax on estates that are valued at $1 million or larger. You'll almost certainly need expert legal and tax advice if the estate must file an estate tax return, either with the IRS or the state taxing authority.

    For information about state taxes, including a list of the states that impose them, see "State Estate Taxes."

    If you do decide that you need the help of a probate attorney, learn how to find the right probate lawyer, and search for a probate lawyer.

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