It can be helpful to engage a lawyer to Probate an estate if you are an executor or administer.
ESTATE PLANNING

Do I need a lawyer to Probate an estate?

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  • Mel Buttigieg
  • Writer, Bare
  • March 5, 2021
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After a loved one has died, working through their estate can be a confusing and time-consuming process, particularly if the estate is complicated. Some families may consider if they need a lawyer to Probate the estate.

Whether to engage a lawyer depends on the size of the estate and the individual family situation.

If an estate is straightforward and not too large, executors or administrators may find that they can wrap up an estate themselves, without needing a lawyer to step in. Some smaller estates may not even require a Grant of Probate at all.

On the other hand, some circumstances may be more complicated than others for a number of reasons and may require professional help.

You can read our article What is Grant of Probate or Letters of Administration? here to find out more about what is needed to administer a deceased person’s estate.

When do I need a lawyer to Probate an estate?

Below is a list of some circumstances where it may benefit to engage a lawyer to step in to Probate the estate. Please note that not every one of these factors needs to apply to your situation, but the more that do, the more likely you may need professional help.

If the deceased died without a valid Will

If the deceased died without a valid Will, it is what’s known as dying intestate. When someone dies intestate, there is a formula of how their assets should be distributed, which is set by State law. Depending on how complicated the estate and family circumstances are, seeking legal advice can help to determine who gets what.

If there are multiple nominated executors who cannot agree to a decision

If there is a Will and it nominates multiple executors to act jointly, they will need to ensure they each agree on decisions about how the estate is administered. If they cannot come to an agreement, it can be uselful to consult with a legal professional. 

If a dispute has arisen between disgruntled family members

We suggest seeking legal advice if a disgruntled family member intends to challenge or contest the Will. If someone is threatening a lawsuit over the Will or estate, court proceedings can cost more money and time than people expect. Court expenses reduce the funds paid out to beneficiaries, so the longer the fight, the less money there will be left to go around.

If the assets are large or complicated

A lawyer can help with Probate if the assets are large or complicated, for example, if the estate contains a business. You will likely want professional advice if Probate requires managing, appraising and selling large assets like a business.

If the estate is insolvent, or there is not enough money to pay debts

If it’s looking like the estate may be insolvent, where there won’t be enough money to pay debts and taxes, you will require assistance. You should get legal advice about which bills and debts to pay and the order, as State law will set out the order in which creditors get priority.

The executor or administrator may become liable if the paying of debts is not handled appropriately, and in some instances, if one type of debt is paid over another.

When can I administer an estate without a lawyer?

On the other side of the coin, here are some circumstances where you may be able to handle the estate administration process without a lawyer. The more factors that apply, the easier the process will generally be for an executor or administrator:

  • If most or all of the deceased person’s property can be transferred without a Grant of Probate;
  • If the estate doesn’t include a business or some other complicated asset;
  • If there are no disagreements between multiple executors or disgruntled family members;
  • If the estate is solvent; and
  • If the executor or administrator is capable of wrapping up the estate without legal help.

 

Our team of estate lawyers can help with any estate planning or administration needs. Give us a call on (03) 9917 3388 or click the below button to make an appointment with our estate lawyers.

This article is not legal advice. You should chat with an estate expert for specific advice on your personal or financial situation.

 

You may also find the below Estate Administration Guide useful:

Estate Administration: 10-step guide to deceased estates

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