So you have been selected by a loved one to serve as their personal representative after they pass away. Or maybe you have filed a petition for probate asking to be named a personal representative for a loved one’s estate, after they have died intestate, and the court has issued letters of authority in your name.
But you are not a lawyer.
With Letters of Authority (LOA) in hand, the next question you have to consider is this: Do you need a probate attorney, or can you Do-It-Yourself?
Ultimately, it comes down to risk management. There are inherent risks to holding the position of personal representative – and potential liability if you act outside of your authority as a fiduciary.
Understanding the “In Pro Per” Status
Technically, you don’t need to hire a probate attorney. California allows individuals to represent themselves in pro per, or without an attorney. There are standardized forms made available by California courts to make probate filings accessible to non-lawyers.
So technically, if your question is if you can do probate without a lawyer, the answer is yes.
The question is whether or not you should.
As a fiduciary, you are expected to adhere to a legal standard of ordinary care and diligence. While the courts will not expect you to be a legal expert, this legal standard is still a high bar. That is, you are accountable for any losses to the estate resulting from your actions, if you failed to observe that degree of prudence that a person of ordinary judgment would exercise in their own affairs.
In short, if you mess up, even if you had good intentions, and your mistake was an avoidable one, you are personally accountable.
Limitations to the Authority of the Personal Representative
The probate process is not merely about filling up and submitting forms. It involves the administration of an estate – managing and preserving properties, collecting debts, paying out creditors, and distributing to heirs and devisees. Each one of these tasks is governed by a specific set of laws and rules that need to be adhered to.
As well, some things you cannot do. For instance, as a lay personal representative, you cannot, in pro per, or without the assistance of counsel, prosecute certain actions on behalf of the estate. If you did, you would be considered as engaging in the unlicensed practice of law.
“[A]conservator, executor, or personal representative of a decedent’s estate who is unlicensed to practice law cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. When such a nonlawyer brings a nonprobate action in propria persona on behalf of the estate, the proper appellate remedy is to reverse with directions for the trial court to strike the complaint.” (…)
(…) the fact that the Probate Code, outside of the IAEA, authorizes the personal representative to commence, maintain, and defend actions for the benefit of the estate or against the estate (§ 9820) and to bring an action against co-tenants for partition of any property in which the decedent left an undivided interest (§ 9823, subd. (b)), does not by implication allow the personal representative to do so without retaining counsel where those actions are brought for the benefit of the estate beneficiaries, and not in the furtherance of therepresentative’sduties as executor and personal representative. (Estate of Sanchez; 2023)
Challenges to DIY Probate
It does take a certain amount of skill and technical proficiency to manage an estate. A personal representative, even if skilled, will likely need assistance in his tasks.
Property Characterization
In California, property that belongs to an estate must often be categorized as community property, separate property, or quasi-community property. There are different implications for distribution for each category.
If you mischaracterize a property, this can open you up to liability, and even cause dispute among the heirs.
For instance, if the estate included a piece of real estate that was bought by the decedent using his personal funds prior to marriage, but was later on used as the family home. The title of the property is still registered under the name of the decedent. Would it be considered community property, separate property or quasi-community property? What if the decedent stated in his will that the property would go to one of his siblings?
There are complexities in such a scenario that requires more than passing familiarity with legal concepts and California-specific laws. It is highly recommended that the advice or assistance of a probate attorney be consulted in this matter.
Procedural Matters
As well, probate is essentially a legal proceeding. Once you notify third parties of the death of the decedent, you also open up the estate to potential claims from creditors, disputes to the validity of a will, disputes from the heirs, even challenges to your capacity to act as fiduciary. These are the kinds of things a probate attorney would handle far more effectively than a lay person, who would otherwise be spending all his time navigating legal procedures rather than administering the estate.
Financial Records and Taxes
From a certain perspective, the administration of an estate is all about numbers. You gather and consolidate estate property, deduct any depreciation, manage and preserve the properties to prevent any further loss. Immediate costs need to be defrayed, creditor claims must be handled, and the remaining estate assets must be distributed before probate can close.
What is the value of a property? You would need professional valuation of certain properties in order to determine their fair market value. If some properties need to be liquidated in order to manage costs, which property is best sold for this purpose?
Probate attorneys usually have a system for dealing with these kinds of issues, and are familiar with who to contact if other professional services are needed – for instance, a valuator and a bookkeeper or accountant.
Faced with these kinds of complexities, DIY-ing your estate management may not be looking so doable. You could do worse than reach out to someone who can provide you with end-to-end professional assistance.
Costs vs. Risk Management
Perhaps one of the most common concern that people have, which can make them think twice about reaching out to an attorney, is the cost of those services.
A good and seasoned probate attorney would, of course, not come cheap.
But here’s the thing – the cost for the fees for probate attorneys, in California, are paid from estate assets. They are not paid personally by the personal representative. One might think that because they are hiring a lawyer to render them legal services, that they are personally responsible for the lawyer’s fees.
But the probate attorney’s services are not offered for the personal representative per se; they are offered to the estate. So it is the estate that is responsible for their legal fees.
On the other hand, the costs of getting a seasoned professional to assist in managing the estate is best defrayed by the kind of risks you are managing with their services:
- potential personal liability of the personal representative or surcharge;
- a speedy and efficient administration of an estate, all handled within California’s rules and laws; and
- the expert and potential handling of claims, disputes and any other matters filed in court
Of course, if the decedent left behind a small and relatively straightforward will and estate, with minimal debts, you may not need a probate attorney. If the decedent left behind a spouse whom he nominated as personal representative, and everything goes to the surviving spouse, things should relatively be simple.
The more complex an estate is, however, the more advisable it is for the personal representative to identify and select a good probate attorney to assist them.
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A probate attorney can help you determine whether an estate is simple enough to be handled in pro per, or whether there are complexities for which professional legal assistance is warranted. Contact us for a consultation and we can help you assess your options.