Determine need for an attorney
When someone dies, their estate needs to be settled.
This can be a challenging process because it involves legal, financial, and tax matters.
For this reason, it is often helpful to hire a probate attorney to assist with settling the estate.
Good to Know
Attorneys are not required by law, but they can help the executor, administrator, or surviving family ensure the estate is settled properly. It’s best to choose an attorney who practices probate law.
This attorney should be licensed in the state where the deceased lived because they will need to be familiar with local laws and procedures.
Regardless whether an attorney charges a flat fee, by the hour, or as a percentage of the estate, they are typically paid by the estate, not by surviving family members or the executor.
Important
Review the questions below to identify the likelihood of needing to hire a probate attorney for the estate.
Helpful Tips
What is a small estate?
Small estates are defined by the laws of the state where the deceased lived. In order to qualify as a small estate, most states require that the total value of the estate not exceed a specific financial limit (e.g. $50,000).
Each state provides their own rules for calculating the total value of an estate.
For instance, some states require that the deceased’s home value count toward the total estate value, while others do not.
Some states also require that the deceased died intestate (without a will) in order to qualify as a small estate.
Estates must have a value under the following limits to qualify as a small estate.
Review the guidelines of the state where the deceased lived to determine how to calculate estate value and what requirements must be met to qualify as a “small” estate.
Alabama $25,000 Alaska $27,000 Arizona $100,000 Arkansas $100,000 California $166,250 Colorado $70,000 Connecticut $40,000 Delaware $30,000 Florida $75,000 Georgia $10,000 Hawaii $100,000 Idaho $100,000 Illinois $100,000 Indiana $50,000 Iowa $100,000 Kansas $40,000 Kentucky $30,000 Louisiana $125,000 Maine $40,000 Maryland $50,000 Massachusetts $25,000 Michigan $15,000 Minnesota $75,000 Mississippi $500 Missouri $40,000 Montana $50,000 Nebraska $50,000 Nevada $300,000 New Hampshire $10,000 New Jersey $50,000 New Mexico $50,000 New York $30,000 North Carolina $20,000 North Dakota $50,000 Ohio $5,000 Oklahoma $50,000 Oregon $275,000 Pennsylvania $50,000 Rhode Island $15,000 South Carolina $25,000 South Dakota $50,000 Tennessee $50,000 Texas $75,000 Utah $100,000 Vermont $45,000 Virginia $50,000 Washington $100,000 Washington, D.C. $40,000 West Virginia $50,000 Wisconsin $50,000 Wyoming $200,000
What is an heir?
An heir is a person who is legally entitled to inherit the Assets or property of a deceased person.
The term “heir” may be used interchangeably with the term Beneficiary.
Heirs can be named in a deceased person’s will, or determined by the laws of the state where the deceased lived.
Typically, heirs are the children, grandchildren, or other close relatives of the deceased.
What is a valid will?
Wills are important legal documents that affect the rights of both people and property.
Most states require that wills fulfill certain requirements to prove that the will was official, valid, and made when the creator of the will was in their right mind, and free of coercion from others.
State law outlines the requirements for a valid will.
In most states, this means the will was signed, dated, and witnessed by at least two neutral third parties (such as a notary and an attorney) who are not named in the will.
When neutral parties witness the signing of a will it helps to show that the creator of the will was not under coercion from other parties, and understood what they were doing when the will was created.
A will that was created with the assistance of a lawyer is more likely to be valid than a will handwritten by the deceased (called a holographic will).
If the deceased had a holographic, or handwritten, will, it may be wise to speak with an estate attorney to determine if the will is valid.
Common requirements for a valid will
- The will is in writing (typewritten is preferable to handwritten, as handwritten wills could be easily altered)
- The person who made the will signed and dated it
- There were at least two adult witnesses who also signed the will and dated it
If the will is legally valid in the state where the deceased lived, it will guide the probate process.
The probate court (also referred to as “surrogate’s” and “orphan’s” court) will typically authorize the executor named in the will to administer the estate, and allow the distribution of assets to the beneficiaries named in the will.
What if the deceased did not have a Will?
If the deceased did not have a Will at the time of their death, then state law will govern the entire probate process, regardless of what the deceased’s wishes may have been.
This is because regardless if the deceased did not have a will, probate is still required. It is the legally required process to pay the deceased’s bills and debts, and give their assets to heirs and beneficiaries.
Without a Will the deceased is considered to be Intestate, and their estate is subject to laws of Intestate Succession in the state where they lived.
Because there is no Will to name an Executor, the court will need to appoint a person to Administer the Estate. The rules for being allowed to serve as an administrator vary greatly by state, but often this person is over 18 and lives in the state, like a family member or close family friend.
If the state needs to appoint a person, they are typically prioritized in the following order:
- Spouse
- Children
- Siblings
- Grandchildren
- Creditors
- Additional persons
To begin the process, they, or an attorney acting on behalf of the estate, contacts local Probate Court, and submits any required court documents, along with a copy of the Death Certificate, to request a hearing.
Good to Know
Courts often provide fill-in-the-blank forms to make the application process easy. Submitting them is known as a Petition for Probate and it officially requests that the court Administer the Estate.
Typically, these forms will need to be notarized before submitting to probate court. It's also incredibly important to bring personal identification to facilitate this process.
Read More
For more information about filing a petition, see the "File petition to start probate" Task in this Chapter.
Providers
Probate can be complicated and overwhelming, so it may be helpful to hire a Probate Attorney, though legally this is not required. Find attorneys near you at the links below.
Personal Considerations
Does the estate qualify as a "small estate"?
It may qualify for a simplified probate process known as summary probate, which is easier to administer without the need for an attorney’s assistance.
Summary probate is often faster, simpler, and less costly than the regular probate process.
Whether an estate is considered a “small” estate is governed by the laws of the state where the deceased lived.
Important
The eligibility guidelines for a small estate vary greatly by state. For instance, some states consider an estate valued less than $150,000 a “small” estate, while other states consider an estate valued less than $1,000 a “small” estate.
It is important to review the laws of the state where the deceased lived to determine whether the estate qualifies for summary probate.
Read More
To learn more about “small” estate eligibility, see the “Review Small Estate Eligibility” section of the Guide.
The probate process may be more time-consuming, complicated, and costly.
An attorney may be needed to assist with settling the estate.
Contact a probate attorney in the state where the deceased lived to learn how to administer a regular estate.
It may qualify for a simplified probate process known as summary probate, which is easier to administer without the need for an attorney’s assistance.
Summary probate is often faster, simpler, and less costly than the regular probate process.
Whether an estate is considered a “small” estate is governed by the laws of the state where the deceased lived.
Important
The eligibility guidelines for a small estate vary greatly by state. For instance, some states consider an estate valued less than $150,000 a “small” estate, while other states consider an estate valued less than $1,000 a “small” estate.
It is important to review the laws of the state where the deceased lived to determine whether the estate qualifies for summary probate.
Read More
To learn more about “small” estate eligibility, see the “Review Small Estate Eligibility” section of the Guide.
The probate process may be more time-consuming, complicated, and costly.
An attorney may be needed to assist with settling the estate.
Contact a probate attorney in the state where the deceased lived to learn how to administer a regular estate.
Are there a significant number of heirs?
This could complicate the estate administration process, making it difficult for the executor to administer on their own without assistance.
Working with a significant number of heirs will be more time-consuming for the executor, as they will need to communicate with each heir.
Important
Having multiple heirs increases the risk of disputes arising between the heirs, as they may disagree on how the executor is performing their role, or whom should receive which assets.
If there are a significant number of heirs and the executor feels overwhelmed or disputes arise, contact a probate attorney for assistance.
The estate administration process will likely be smoother and more efficient, making it easier for the executor to manage the estate on their own.
The executor may be less likely to need the assistance of an attorney.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
This could complicate the estate administration process, making it difficult for the executor to administer on their own without assistance.
Working with a significant number of heirs will be more time-consuming for the executor, as they will need to communicate with each heir.
Important
Having multiple heirs increases the risk of disputes arising between the heirs, as they may disagree on how the executor is performing their role, or whom should receive which assets.
If there are a significant number of heirs and the executor feels overwhelmed or disputes arise, contact a probate attorney for assistance.
The estate administration process will likely be smoother and more efficient, making it easier for the executor to manage the estate on their own.
The executor may be less likely to need the assistance of an attorney.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Is there only a single heir to the estate?
Administering the estate and distributing assets of the estate should be smoother and easier, because there is less room for disagreement.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Administering the estate and distributing assets can get complicated when there are multiple heirs.
There is also greater risk that at least one of the heirs might dispute the estate (file a lawsuit against the estate).
If there are a significant number of heirs, confusion over which heirs are entitled to which assets, or a dispute amongst the heirs, contact a probate attorney for assistance.
Administering the estate and distributing assets of the estate should be smoother and easier, because there is less room for disagreement.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Administering the estate and distributing assets can get complicated when there are multiple heirs.
There is also greater risk that at least one of the heirs might dispute the estate (file a lawsuit against the estate).
If there are a significant number of heirs, confusion over which heirs are entitled to which assets, or a dispute amongst the heirs, contact a probate attorney for assistance.
Is the will unusually detailed?
It may be confusing for the executor to understand and less clear about who is to inherit which assets.
The executor may need to speak with a probate attorney for assistance understanding the will.
There is less room for confusion regarding the instructions contained in the will.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
It may be confusing for the executor to understand and less clear about who is to inherit which assets.
The executor may need to speak with a probate attorney for assistance understanding the will.
There is less room for confusion regarding the instructions contained in the will.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Is there more than one will?
This could cause a dispute over which will should apply.
As such, it is more likely an attorney’s assistance will be needed.
Review the dates on the wills, if any, to determine which will was created most recently.
Typically, the most recent will determines how the estate will be settled.
Also, if one will meets the requirements for a valid will and one does not, the will which meets legal requirements may prevail over the invalid will.
If there is a question as to when the wills were created or which will should apply to the estate, it could result in a lawsuit over which will applies.
Contact a probate attorney for assistance in this situation.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
This could cause a dispute over which will should apply.
As such, it is more likely an attorney’s assistance will be needed.
Review the dates on the wills, if any, to determine which will was created most recently.
Typically, the most recent will determines how the estate will be settled.
Also, if one will meets the requirements for a valid will and one does not, the will which meets legal requirements may prevail over the invalid will.
If there is a question as to when the wills were created or which will should apply to the estate, it could result in a lawsuit over which will applies.
Contact a probate attorney for assistance in this situation.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Is the will valid?
If the will meets the legal requirements of the state where the deceased lived, it will be considered valid by the probate court.
This means the probate court will follow the instructions contained in the will regarding who is to receive the deceased’s assets.
Every state has their own requirements for a valid will.
Typically, a will must be created by the deceased while they were competent and able to make legal decisions for themself.
Also, wills are typically required to be signed, dated, and witnessed by someone other than the deceased.
If the deceased’s will meets the state requirements for a valid will, there may be less need for a lawyer’s assistance.
Review state law to determine if the deceased’s will was valid.
Then, review the other questions in this section to see if there are other situations that might require the assistance of a lawyer.
The estate is more likely to need the assistance of a probate attorney.
This is because probate courts will only accept a valid will that meets state requirements.
The validity of the will might have to be proven in probate court and a lawyer may be able to help prove the validity of the will.
If it is not considered valid, or found to be invalid by the probate court, the deceased will be considered, “intestate.”
The laws of intestacy in the state where the deceased lived will apply. Intestate estates are typically more complicated to administer than testate estates, because the executor will need to research and follow the state laws that guide intestate estate.
While the requirements for a valid will differ by state, most states require the following for a valid will:
- The will is in writing (typewritten is preferable to handwritten, as handwritten wills could be easily altered)
- The person who made the will signed and dated it
- The person who made the will was competent and understood what they were doing
- There were at least two adult witnesses who also signed and dated the will
If the deceased’s will met these general requirements, you may be able to prove to the probate court that the will was valid (a step that is required to get probate authorized in court).
If the will did not meet these requirements, you may need the assistance of an attorney to prove validity or to administer an “intestate” estate.
Contact a probate attorney to determine what should be done if the deceased had an invalid will.
If the will meets the legal requirements of the state where the deceased lived, it will be considered valid by the probate court.
This means the probate court will follow the instructions contained in the will regarding who is to receive the deceased’s assets.
Every state has their own requirements for a valid will.
Typically, a will must be created by the deceased while they were competent and able to make legal decisions for themself.
Also, wills are typically required to be signed, dated, and witnessed by someone other than the deceased.
If the deceased’s will meets the state requirements for a valid will, there may be less need for a lawyer’s assistance.
Review state law to determine if the deceased’s will was valid.
Then, review the other questions in this section to see if there are other situations that might require the assistance of a lawyer.
The estate is more likely to need the assistance of a probate attorney.
This is because probate courts will only accept a valid will that meets state requirements.
The validity of the will might have to be proven in probate court and a lawyer may be able to help prove the validity of the will.
If it is not considered valid, or found to be invalid by the probate court, the deceased will be considered, “intestate.”
The laws of intestacy in the state where the deceased lived will apply. Intestate estates are typically more complicated to administer than testate estates, because the executor will need to research and follow the state laws that guide intestate estate.
While the requirements for a valid will differ by state, most states require the following for a valid will:
- The will is in writing (typewritten is preferable to handwritten, as handwritten wills could be easily altered)
- The person who made the will signed and dated it
- The person who made the will was competent and understood what they were doing
- There were at least two adult witnesses who also signed and dated the will
If the deceased’s will met these general requirements, you may be able to prove to the probate court that the will was valid (a step that is required to get probate authorized in court).
If the will did not meet these requirements, you may need the assistance of an attorney to prove validity or to administer an “intestate” estate.
Contact a probate attorney to determine what should be done if the deceased had an invalid will.
Are there assets without beneficiaries?
An asset is any property owned by a person that has value.
For example, real estate, vehicles, and personal belongings are assets.
If the deceased has assets that do not have named beneficiaries, it could be complicated for the executor to determine who should get the assets.
There is also a chance disputes might arise over who should get the assets.
In either case, it could be beneficial to speak with a probate attorney to determine who is entitled to the assets.
There is less room for confusion and disputes over who is entitled to what assets.
As such, there may be less need for a lawyer’s assistance.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
An asset is any property owned by a person that has value.
For example, real estate, vehicles, and personal belongings are assets.
If the deceased has assets that do not have named beneficiaries, it could be complicated for the executor to determine who should get the assets.
There is also a chance disputes might arise over who should get the assets.
In either case, it could be beneficial to speak with a probate attorney to determine who is entitled to the assets.
There is less room for confusion and disputes over who is entitled to what assets.
As such, there may be less need for a lawyer’s assistance.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Are the deceased's assets unclear or not known?
The executor may need the assistance of a probate attorney to locate, identify, and gather the deceased’s assets.
One of the executor’s primary roles is to gather and distribute the deceased’s assets, so they will not be able to advance in the probate process if the deceased’s assets are unclear.
A probate attorney or an estate accountant may be able to help locate the assets of the deceased.
Contact a probate attorney to assist with identifying the deceased’s assets.
They will be easier to locate, identify, gather, and distribute to the deceased’s heirs.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
The executor may need the assistance of a probate attorney to locate, identify, and gather the deceased’s assets.
One of the executor’s primary roles is to gather and distribute the deceased’s assets, so they will not be able to advance in the probate process if the deceased’s assets are unclear.
A probate attorney or an estate accountant may be able to help locate the assets of the deceased.
Contact a probate attorney to assist with identifying the deceased’s assets.
They will be easier to locate, identify, gather, and distribute to the deceased’s heirs.
Review the other questions to see if there are other situations that might require the assistance of a lawyer.
Providers to Contact
Probate Attorneys Near You
Probate attorneys help settle a deceased person’s estate. They can ensure you comply with the state and federal probate laws. They can also assist with paperwork, the probate process, and the financial aspects of probate.
