Do I Need An Estate Attorney?

The question of whether to hire an attorney to settle an estate is one I hear frequently in my San Antonio practice. The short answer is: it depends. While some estate settlements can proceed smoothly without legal intervention, many situations benefit significantly from the guidance of an experienced estate attorney. Let’s delve deeper into when legal assistance is most beneficial.

What is Probate?

In Texas, Probate is the legal process through which a deceased person’s assets are distributed according to their will or, if there is no will, according to the laws of intestacy. It involves a few steps:

• validating the will (if one exists) – in the legal profession, this is often referred to as “proving a will up” and in Texas it generally requires sworn testimony in open court
• identifying and valuing the deceased’s assets – sometimes this is uncontroversial; other times, get ready for some fireworks
• paying debts and taxes – again, where the debts and taxes are contested (or potentially contested) this can be a potential fight
• distributing the remaining assets to the rightful heirs or beneficiaries.

As I said, probate can be a complex and time-consuming process. Significantly more so if you do not have the benefit of experienced counsel on your side.

When You Might Not Need an Attorney:

• Clear Beneficiary Designations or Automatic Transfers; No Disputes: If the deceased had designated beneficiaries/automatic transfers on all his or her assets, and there are no disputes among beneficiaries, navigating the process yourself might be feasible.
• Assets Passing Directly: Assets like life insurance policies or accounts with named beneficiaries often transfer outside of probate, simplifying the process.
• Small Estate Affidavit: Texas offers a streamlined process for small estates (generally, those with assets excluding the homestead and exempt property, totaling $75,000 or less). If your situation qualifies, an attorney might not be strictly necessary. This affidavit simplifies the transfer of assets.

When an Estate Attorney is Highly Recommended (and Often Required):

• Probate Required: Probate is the legal process of validating a will and distributing assets. Texas probate law can be complex, and the required hearings and documents are not easily prepared by someone without legal training. If you know that the estate will need to go through probate, you will need an attorney. An attorney is not only a good idea, but in fact legally required, you must have an attorney to proceed through probate in Texas. Per the Texas Supreme Court, representing an estate is considered to be representing another person in court, and as a result only attorneys are allowed to appear on an Estate’s behalf.
• Will Contests: If a will is challenged, perhaps due to questions of capacity or undue influence, an experienced attorney is crucial to protect your interests. Will contests can be highly contentious and require a strong legal advocate.
• Complex Assets: Estates involving real estate, business ownership, or significant investments require careful handling. An attorney can help navigate tax implications, ensure proper valuation and distribution, and address any related legal challenges.
• Creditor Claims: Dealing with creditors’ claims against the estate can be tricky. An attorney can help you understand your rights and obligations, negotiate with creditors, and protect the estate’s assets.
• Family Disputes: Even in seemingly amicable situations, disagreements can arise. An attorney can act as a neutral mediator, helping to resolve conflicts and prevent them from escalating into litigation. This is especially important in blended families or when there are multiple potential heirs.
• You’re an Executor/Administrator: The executor or administrator has a fiduciary duty to the estate and its beneficiaries. An attorney can guide you through your responsibilities, minimizing your personal liability. This includes ensuring you understand your duties regarding inventorying assets, paying debts, and distributing property.

Why a San Antonio Attorney Matters:

Texas probate law has its own nuances. A local attorney understands the specific procedures of the Bexar County probate courts and has established relationships within the legal community. This local expertise can be invaluable in navigating the process efficiently. They will be familiar with local court rules and procedures, potentially saving you time and money.