The fact that you ask this question might be a good indication that you are on the right track in planning, preparing or settling an estate. As you can imagine, the answer to the question is that it depends on the situation and is best determined on a case-by-case basis. At the same time, there are some good indicators to help you determine if you need a probate attorney and in Tennessee, there are some specific guidelines that can help you as well. Here are five ideas to help you determine if you need a probate attorney.
1) Consider the size of the estate – large or small, simple or complex? If the estate doesn’t contain unusual assets, and it isn’t too large, you may be able to get by without a lawyer’s help. Tennessee also has a simplified small estate process that can be used if the value of the property in the estate, not counting property held jointly with right of survivorship or real estate, is $25,000 or less. The larger and more complex the estate, the more likely you’ll want to consult an attorney.
2) Has any probate-avoidance planning been done before death? Once again, to avoid probate and difficulties settling an estate takes a considerable amount of planning. Has there been any estate planning in your situation?
3) Are the deceased person’s assets transferable outside of probate? Examples of assets that don’t need to go through probate are assets are held in joint tenancy, survivorship community property, assets held in a living trust and assets for which the deceased person named a beneficiary—for example, retirement accounts or life insurance policy proceeds. Estates with other more complex or unusual assets would benefit from consulting with a probate attorney.
4) Are family members getting along? As hard as it may be, if there is discord in the family unit, retaining an attorney might be advisable. Will contests are fairly rare, but if a family member is having difficulty with the terms of the settlement or for whatever reason is talking about suing over the estate, talk to a lawyer immediately. When the family unit is in harmony, things always go better.
5) Is the estate able to pay its debts? When there may not be enough money in an estate to pay debts and taxes, things can get tricky. If it’s not obvious and the estate cannot pay its debts, you’ll probably want to get some legal advice. Also recommended in this case: don’t pay bills before you consult an attorney. State laws may give some creditors priority over others and executors will need to know what to do.
One good thing about probate is that there are things you can do to avoid it or at least make it go more smoothly. That means a little planning ahead of time can go a long way in preserving the assets of the estate and in making the probate process as easy as possible. In all cases we suggest planning ahead, years and years ahead if possible. If you are dealing with an estate of significant value the sooner you start planning the better, in fact, to distribute assets effectively requires action years and years before death.
We believe it’s better to check with an attorney to determine if you need an attorney. We’re available to help you and are happy to discuss your questions about Estate Law, Probate Administration, Probate Litigation, Will Disputes or other related issues.