Should You Settle an Estate Without a Lawyer? What You Need To Know

Are you tasked with settling a loved one’s affairs and wondering whether it’s possible to do so without a lawyer? Well, it can be an intense process, both emotionally and with the amount of work that goes into it. Court probate has strict procedures and requirements. If all of the assets have named, living beneficiaries, this process is easier. But it’s not easy to do alone.

Settling an estate without a lawyer is much harder

Estate executors have specific legal obligations and rights. Estates are managed according to state-specific probate laws. Different kinds of assets transfer in different ways according to how they’ve been set up and managed. 

Attempting to handle all this yourself involves a lot of research, and there are consequences if you get it wrong. Beneficiaries might make claims against the estate or you personally, or the court might step in if you fail to fulfill your duties. Getting guidance from a lawyer, from the beginning, is the best way to handle an estate.

One of the main purposes of estate planning is to make sure that a person’s loved ones have the resources to manage death expenses. This includes funeral arrangements, taxes, debts, and legal fees. Try to think about legal advice as one of the necessary expenses that estates cover.

Many estates must go through probate

Probate is a court-managed process for settling an estate that includes paying debts, taxes, and distributing assets according to the Will or state probate laws. 

Many estates must go through probate for at least some of their assets. It’s often helpful to get legal advice at the beginning of the estate process to determine whether probate is required. Aspects of the estate that are exempt from probate are often easier to settle because they transfer to beneficiaries directly.

There are many reasons probate could be required

Probate is usually required when an estate has assets outside of a trust or a direct beneficiary designation, and probate can occur if there is or isn’t a Will.

Certain situations may trigger the probate process, even if an estate might otherwise qualify for an exemption. This might happen when the court must make guardianship decisions over a minor child. It could also happen when third parties, for example, banks, require Letters Testamentary. 

Some property can transfer without probate

You can typically transfer some assets without probate. These include:

• Joint ownership with right of survivorship: Any property owned jointly with the right of survivorship passes to the co-owner. This person is often the deceased’s spouse. Property may include homes, cars, bank accounts, and financial investments. There might be some additional paperwork to complete in order to put the assets in the name of the surviving joint owner. 
• Life insurance and retirement accounts with named beneficiaries: Life insurance policies with named beneficiaries don’t go through probate. Neither do IRAs, 401(k)s, and other retirement accounts, as long as they have a living beneficiary.
• Payable-on-death and transfer-on-death accounts: Bank accounts and even some property deeds and vehicle titles can be set up as payable-on-death (POD) or transfer-on-death (TOD) by the original owner. Some additional paperwork might be required to transfer ownership. 
• Assets held in a living trust: A revocable living trust is an estate planning tool that can sometimes help property pass without probate. A trustee manages the trust after its owner passes away and can distribute assets directly to named beneficiaries without probate. Laws vary from state to state, but almost anything can be held in a trust, from real estate to jewelry to stocks and bonds. Assets must be transferred to the trust before the owner's death to avoid probate.
• Some property that passes by contract: Some annuities, buy-sell agreements, and other contracts may pass along assets on death if so stated in the contract.  

As an executor, you have little influence over how property is transferred and whether it can avoid probate. If you’re setting up an estate for yourself, it’s best to get the advice of a lawyer familiar with your state’s probate laws. With proper estate planning, you may have more of a chance to protect some assets from probate.

Small estate options

If the estate is eligible under state law, then the executor may be able to file a small estate affidavit. This affidavit allows a beneficiary to receive the estate’s assets without probate, but there are strict conditions. 

The estate must be “small” according to the state’s rules, which generally means it doesn’t contain real estate and has a total value below a certain amount.

When referring to a state law, it must be in the state where the property is located, not where you live.

A lawyer can help guide you to prevent making mistakes, or help advise you if a small estate affidavit is possible. Being an executor comes with significant responsibility, and professional advice helps you fulfill your obligations. A LegalShield® Personal Plan connects you with a provider law firm that can advise you about handling estates. 

How LegalShield can help

Whether you’re drafting a Will or setting up a trust, you deserve affordable and accessible legal help.

When settling an estate, LegalShield provider lawyers can answer questions and provide guidance on your rights and responsibilities. While you’re a LegalShield member, you can get discounts on additional legal services to help with more complex estate issues.

We also offer a range of services across the Personal Plan tiers to help you plan your estate with confidence. Our provider lawyers can help with proactive steps like creating a Will or establishing a revocable living trust (Premium Plan). 

Get everyday legal support, without the guesswork.

Frequently asked questions

Learn more about how to handle an estate with answers to some frequently asked questions:

Do you need a lawyer to settle an estate?

You’re not legally obligated to use a lawyer to settle an estate. But you should seek professional advice anyway, because estates can be complex legal processes.

What is an estate?

A deceased’s estate is the assets and financial obligations someone leaves behind after death. An estate can include real property, personal property, bank accounts, retirement accounts, cash, taxes, and debts. 

How long does the executor have to settle the estate?

The length of time you have to close an estate will depend on a few factors, including the laws of the state you’re in. Different states have different filing deadlines, notification windows, and distribution windows.