When an Ohio resident dies, a grieving family member is usually faced with the task of administering the estate, also known as probate. Probate can be a challenging process at the best of times, and even more so under the emotional strain of loss. Many people who are responsible for probating an estate have never done so before and do not know where to begin. A question we often hear from executors or administrators of estates is, “Do I need to hire a probate lawyer?”
The short answer to that question is that no, you are not required to have an attorney to probate an Ohio estate. But a better question is, “Would the probate process go more smoothly with a probate attorney’s help?” To that question, the answer is almost certainly “yes.”
To understand whether you need a probate lawyer’s help, it is important to understand what a probate attorney does. Probate is the legal proceeding for validating a will (if the deceased had one), settling creditors’ claims against the estate, and distributing any remaining assets to the decedent’s heirs or beneficiaries.
Probate often affects the rights of multiple parties: various family members and usually several creditors, both known and unknown. As a result, Ohio probate law requires that certain steps be taken within a certain time frame to protect those rights. A personal representative (estate administrator or executor) who commits a breach of duty (even accidentally) can delay the probate process and may even be personally liable for any losses. An attorney’s help can prevent needless delay and expense.
A probate lawyer’s duty is to advise the personal representative of the estate and help them to fulfill their obligations to the estate in a timely manner. Many personal representatives hire a probate attorney to deal with the preparation and filing of court documents. Certainly, an experienced attorney who is familiar with probate court deadlines and filing requirements can help in this area. But probate attorneys often do much more, including:
So, do you need a lawyer for probate? Most of these tasks could, in theory, be completed by the personal representative. However, they are more likely to be done properly and efficiently by an experienced probate lawyer.
If you are still wondering if you need a probate lawyer, here are some situations in which a probate attorney’s help is recommended.
If you suspect that there will be disputes or litigation regarding the estate, you really should have the help of a probate attorney. Common reasons for disputes are conflicts between siblings, especially if there are unequal bequests in a will; allegations of fraud or undue influence in the making of the will; and conflict between children of the deceased and a surviving spouse who is the stepparent of those children. Disputes can also arise over creditor claims against the estate.
A probate lawyer can defend the personal representative’s actions in the event of any litigation over the estate. However, even if disputes don’t ripen into litigation, having a probate attorney to serve as the “point person” lifts a great deal of stress from the shoulders of the personal representative, who may have close family relationships with one or multiple parties to a probate dispute.
As a general rule, the more complex the assets in the estate, the better it is to have a probate attorney’s help. If you are serving as the personal representative of an estate in which the deceased owned a business or other complex or illiquid assets, you are much better off retaining an attorney. Distributing these assets could have tax or legal implications of which a lay person may not be aware.
Only a very small percentage of estates (less than 1%) owe federal estate tax thanks to the high estate tax exemption amounts currently in place ($12.06 million per person in 2022). However, the exemption amount is scheduled to decrease by several million dollars in 2026, so more estates may be subject to this tax.
Even if estate tax is not a concern, however, managing a large estate can be complicated, especially if you don’t have a financial background. It is better to have an attorney who is familiar not only with estate and probate matters, but with tax issues.
In Ohio, an executor named in a will can be appointed as personal representative of the estate even if they do not live in Ohio. However, being out of state can complicate an executor’s ability to manage estate business, especially if most estate assets are located in Ohio. Having an Ohio probate attorney greatly simplifies the process.
This one surprises a lot of people. If an estate has a lot of debt, and perhaps has more debt than assets, why is a probate lawyer needed? The answer lies in something called the priority of debts. In an estate, some debts are considered higher in priority than others. If there is not enough money to pay all the debts, higher priority debts must be paid first. If a lower priority debt is paid to the detriment of a higher priority debt, the personal representative may be liable to the creditor who went unpaid.
Understanding which debts have higher priority can be complicated. It is important to have an attorney’s guidance on this matter.
Despite the fact that it is usually beneficial to the estate for a probate lawyer to be involved, there are a few situations in which you might be able to get away without having a probate attorney. These are typically situations in which the estate is very small or in which there is only one or a few beneficiaries, and no conflict between them. For example, if the deceased left an estate valued at about $50,000, and the only beneficiary was a spouse, the spouse could probably go through an expedited probate procedure and an attorney’s services might not be needed (though they still might be helpful).
Many personal representatives are justifiably concerned about probate costs, especially attorney fees. It is impossible to state as a general rule what the attorney fees would be to probate an estate, but there are three important things to keep in mind.
The first thing to remember is that probate lawyer fees are typically paid out of estate funds, not out of the personal representative’s pocket. The second thing is that the larger and more complex an estate is, the higher the attorney’s fees are likely to be. The third thing is that if an estate would benefit from an attorney’s services, the cost of doing it yourself could end up being higher than the cost of an experienced probate lawyer — and that’s not counting your stress and time.
If you are still not sure whether you need to hire a probate lawyer, it is worth having an initial consultation to learn what a probate lawyer can do for you.