If you are serving as the executor or administrator of a loved one's probate estate, you may be wondering if you really need the assistance of a probate attorney. Strictly speaking, you are not required to have an attorney's assistance to probate an Ohio estate. But there are several reasons that you will likely need a lawyer's help.
If your concern is the expense of an attorney, there's good news: the cost of an attorney's services in probating an estate do not come out of your pocket, but out of estate funds. Furthermore, the services of an attorney can actually save an estate money by making sure estate business is handled properly the first time around.
If the estate includes real estate, such as a house or rental property, an attorney is essential.
If you need to probate an estate that contains complicated assets like a business or real estate, or anything that will require management on an ongoing basis, you should definitely hire an experienced Ohio probate attorney. Inexperienced management of such assets can reduce their value or even lead to liability.
If there is tension between heirs, the likelihood of a will contest or other probate litigation increases. An experienced probate attorney can help to defuse tension and avoid unnecessary litigation over the estate. Probate litigation not only dissipates estate assets, but can irreparably harm family relationships. Similarly, if there is uncertainty over who the deceased's heirs, are or allegations of fraud or undue influence regarding the making of the will, an attorney should be involved.
You might think that if the estate's debts exceed its assets, it's a bad idea to add to those debts by incurring attorney fees. In truth, the presence of debts means that an attorney's help is needed. Because Ohio law gives some debts priority over others, you could be in hot water if you pay certain creditors ahead of others. If you're not sure whether the estate's assets exceed its debts, get an attorney.
Very few estates—fewer than 1%—will be large enough to trigger federal estate tax. Most people with large estates have done extensive estate planning, including the creation of trusts to minimize any tax burden and allow assets to pass outside of probate. Even so, if you are faced with probating a large estate, you will always want an attorney's help (and probably that of an accountant) to ensure that all assets are properly managed and accounted for.
If any of these factors are present in an estate for which you are executor, you should strongly consider retaining an experienced Ohio probate attorney on behalf of the estate. However, even if none of these factors are present, there is still one compelling reason to have an attorney's assistance: an executor or personal representative of an estate can be personally liable for mishandling their duties—even inadvertently. It's simply not worth taking the risk if you are the least bit unsure about what you will be expected to do.