One of the most common questions we get asked is, “Can I do probate without a lawyer?”
We understand the context of the question. The legal field does not deal well with those not familiar with its jargon, nuances, and intricacies. Lawyers had to study for years navigating this morass in order to be admitted to its ranks.
For the ordinary, intelligent person, it might also seem like a lot of unnecessary hurdles to deal with, especially after the passing of a loved one.
After all, on its face, it may seem simple enough: gather the decedent’s properties, pay off their debts, and then distribute what remains to the heirs. Why make a mountain out of a molehill?
The “Hidden” Benefits of the Probate Code
A probate lawyer with professional familiarity with California’s Probate Code will tell you that probate is not just a matter of filling up forms and paperwork and pushing to settle property issues left behind by the deceased.
There are a fair number of potential issues, liabilities and risks to probate, inheritances, property transfers, and unpaid debts that a person unversed in the law may not recognize.
As with any legal codification, rules have been put in place not only to ensure the proper management of all these various issues, but also to protect the interests of the different parties and settle the entire matter in the most efficient manner possible.
So to the question, “Can you do probate without a lawyer?” The answer is certainly yes. If you were issued Letters of Authority to act as the personal representative of an estate, it is assumed that you have all the authority needed to do manage, administer and close probate.
The more pertinent question is, “Should you?”
If you want to make sure that probate is handled according to legal standards, in the most efficient way possible, with minimal risk to yourself, then you should seek the assistance of a legal professional who is well-versed in the nuances of the Probate Code,
For instance, let’s take a look at two of the protections afforded by the Probate Code to the decedent’s surviving family during a probate proceeding.
Protection for the Homestead
Probate Code §6520 provides for a Probate Homestead Set-Aside. This means that the court, upon petition, may set aside the family home as protected residence for the surviving spouse and minor children of the decedent. This essentially places the family home outside of the reach of creditors, even in the face of an insolvent estate.
The Family Allowance
Probate Code §6540 deals with family allowance.
When the decedent’s property is going through probate, everything is “frozen.” What happens if, for instance, all properties were solely, or in part, in the name of the decedent? Those properties are consolidated as assets of the estate, and then preserved until such time as legitimate creditor claims can be reviewed and paid, and then the remainder is distributed to the heirs.
Realistically, probate can take months, sometimes more than a year, to settle. In the meantime, the family of the decedent will need a livable allowance.
Probate Code §6540 recognizes this and, upon petition, allows for the payment of an allowance to the family of the decedent during the administration of the estate. This is a reasonable allowance given to specific family members such as the surviving spouse, minor children, and adult children with a physical or mental incapacity, among others. What is “reasonable” is determined by the court, based on a review of all pertinent facts, and balancing the needs of the surviving family members and their standard of living, the size of the estate, and claims against the estate.
Notably, the Family Allowance is considered as holding preferred status over other competing claims or estate obligations. This is protection recognized and prioritized by the law and should be something every personal representative is familiar with.
Statutory Attorney Fees
In the field of probate, attorney fees are set by law or statute. California’s Probate Code sets a fee schedule for the probate attorney based on the gross value of the estate:
- 4% on the first $100,000
- 3% on the next $100,000
- 2% on the next $800,000
- 1% on the next $9,000,000
- 1/2 % of 1% on the next $15,000,000
- A reasonable amount to be determined by the court for all amounts above $25,000,000
So, if your hesitation on whether or not you should hire a lawyer stems from the potential cost of those legal services, the law sets a predictable and more than reasonable cap on attorney fees.
Further, those fees are payable not by any one person from their own pockets. Attorney fees are payable from and chargeable to the estate assets.
Legal Fees as a Necessary Expense of Administration
So to the question of whether or not you should retain a probate lawyer, the decision is up to you. Weigh the advantages and disadvantages, the costs and the gains. As a personal representative, how much risk are you wiling to absorb yourself?
Then if you decide to seek the help of a legal professional, let us know. We are more than happy to have a conversation with you.