In many cases, simple estates do not require an attorney for probate. Executors who represent themselves can save the estate and the beneficiaries the high cost of attorneys’ fees. However, there are some situations that make the probate process a bit more difficult. In these instances, executors may want to consider hiring an attorney for probate to represent them in court.
1. A Contested Will
When a person dies with a will, interested parties such as beneficiaries have the right to contest its contents. However, a contesting party must have legal grounds on which to base their objection. For example, a beneficiary may contest a will claiming some sort of mistake or fraud. Additionally, they can assert that the will was written under improper influence by another individual.
Regardless of the legal grounds under which a person contests a will, this conflict can make the probate process a bit more difficult for an executor representing him or herself in court. Typically, the court will hold a hearing on the objection, after which the judge could potentially rule the will as invalid! Therefore, unless an executor is well-versed in legal terminology and procedures, they may choose to hire a probate lawyer in the case of a contested will.
2. A Complicated Estate
Some estates are so simple that they can actually avoid the probate process altogether! However, while some small estates are eligible for special affidavits in California, larger estates must go through full probate. Further, the larger the estate, the more room for complications and error – plus, the higher the need for an attorney for probate. For example, an estate worth millions of dollars will almost definitely present some conflict for the self-represented executor. Unfortunately, navigating probate without a lawyer for a complicated estate could result in a void will.
Perhaps one of the most difficult situations to navigate without an attorney for probate is an estate in debt. For instance, if a decedent describes in their will the creditors to whom they owe money, the executor must pay those individuals. However, if an executor mistakenly pays a creditor, the court could hold that individual responsible for reimbursing the estate and/or beneficiaries! Furthermore, if an executor is unaware of certain state agencies that require special notice of the decedent’s death, they could face trouble in court. As a result, an executor dealing with indebted estate may benefit from hiring an attorney for probate to help with creditors.
3. An Ambiguous Will
Finally, if a decedent has left a will with any ambiguities or chance of error, the executor should be sure to work with a lawyer on the probate process. For example, a decedent may have left patent ambiguities, or inconsistencies written right into the will. Leaving the same gift to more than one beneficiary or percentages not adding up to 100% are common examples of patent ambiguities. On the other hand, latent ambiguities occur when a wording could have various meanings. For instance, listing two family members with the same name is a latent ambiguity.
Unfortunately, executors cannot take it upon themselves to interpret a will however they see fit. This situation could easily result in a contested will and arguments between family members. Further, without proper legal representation supporting certain interpretations of the will, the court may deem it invalid. As a result, any executor left with an unclear will should definitely reach out to an attorney for guidance.