Wednesday, November 14, 2012

Do I Need to Hire a Lawyer When Settling an Estate?

After someone dies should the executor hire a lawyer? The simple answer is... maybe... it depends. I'm sure you just love that answer, don't you?! Let me explain. And, I'll begin by saying I'm not a lawyer, but as an Executor's Agent, I run across many instances where lawyers are not necessary, and some instances where they provide good value.

Firstly, is an executor obligated to hire a lawyer? Does the law say an executor must use a lawyer? No, there is no rule that says an executor must hire a lawyer. In a nutshell, settling an estate is an administrative task, so many people can do everything on their own.

Now the grey area. Should an executor hire a lawyer? Although settling an estate is primarily administrative, there can be some legal components to it. Not every estate, but many estates. For instance, does the will have to be probated? If the answer is 'yes' then legal forms will need to be prepared and filed in court (probate registry). This is clearly a legal task, but you can prepare and file these forms by yourself if you wish, and in many estates these forms are really easy to prepare. An inexpensive kit can be purchased at an office supply store containing the forms and instructions, and the obvious good news is that you'd avoid paying a lawyer to prepare these forms. The bad news, however, is that you cannot go to any other professional for assistance in preparing the forms. In British Columbia, notaries are not permitted to prepare these forms, nor are financial advisors, accountants, trustees or other consultants. It's just you or a lawyer. So, back to the big question: Should you hire a lawyer? It depends on the complexity of the estate, your level of confidence and the value of your time. In my experience most executors find the legal forms pretty easy, but it's the list of assets & liabilities that poses a challenge, but the good news is that anyone can help you prepare that list; you don't need a lawyer for that task.

We recently helped an executor with a simple estate who hired a lawyer to prepare the probate documents. For this person, hiring a lawyer was money well-spent. He had no computer, poor health, and most of the language used regarding probate was foreign to him, so his lawyer was able to provide him with some peace of mind.

Is the will complicated and hard to understand? A lawyer can help you understand it, especially if trusts are involved. Has one of the beneficiaries threatened to sue for a bigger portion of the estate? I consider this matter grey, but only you can decide how serious and capable the beneficiary may be.

If you choose to hire a lawyer, be clear on why you're taking this action. What do you want the lawyer to do for you, specifically? If, however, you're hiring a lawyer simply because you need to be educated on the steps involved in settling an estate, I would suggest there's less expensive ways of learning. An executor's agent, for example, can describe the process to you, ensure tasks are completed in a timely manner, prepare you for deadlines and can advise you on when legal advice may be beneficial.

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