Hiring a lawyer is the first thing that comes to our mind after we become the executor of a will because we believe it makes the most sense to have a lawyer to make the probate process easy. However, it might not be the case with every probate.
Yes, lawyers are professionals and know what they are doing, but having one isn’t a mandate. In fact, It might be the other way around with your probate case when you are the executor of a will and may not need one to handle the proceedings. But nothing’s carved in stone. Whether you should go for a probate lawyer or not depends on various factors.
Let’s see why, when, how, and what of a lawyer-free probate process.
What is the Probate of a will?
Before we go any further, it is important to first understand what probate is and how you stand responsible as the executor of a will.
In Australia, probate is a legal procedure in which the Supreme Court certifies that a person has passed away leaving behind a legitimate will and the executor(s) appointed in the will have the ability to administer and close the estate of the deceased.
The objective of probate is to show that the dead individual left a valid will and to identify the assets and liabilities in their estate.
What is the Role of a Probate Lawyer?
Estate management is where a probate lawyer shines. The attorney’s involvement will change depending on whether the deceased left a will or died intestate, i.e., without a valid will.
Coming to the role of a probate lawyer, they can assist you with the following:
- Creating and submitting legal paperwork as mandated by the court
- Distributing real estate and other possessions to beneficiaries
- Resolving payables
- Obtaining the earnings of life insurance plans
- Addressing tax matters such as income tax, federal estate tax, and estate tax return concerns
Usually, all these are done by the executor of a will in the absence of a probate lawyer.
When is a Probate lawyer not needed?
In some cases, the executor of a will may be able to complete the estate administration procedure without the assistance of a lawyer. Here’s a list of scenarios where that might be possible.
- When the dead person’s property can be transferred without the need for a Grant of Probate
- When the estate does not contain a business or another complex asset
- When there are no conflicts among several executors or family members
- When the estate is liquid
- And when the administrator or executor of a will can close the estate without the assistance of a lawyer.
The more of these apply to the estate, the easier it gets for the executor of a will to settle the estate. With one or more of these factors, the probate process becomes simple enough even without an attorney.
However, sometimes adverse situations may arise, such as:
- The deceased has made no will
- When there are multiple executors who cannot reach an agreement
- If there is a disagreement amongst angry family members
- If the assets are substantial or intricate
- If the estate is insolvent or there are insufficient funds to pay debts
Then it is necessary to have a probate lawyer because things get complicated.
Multiple ways to apply for Probate
Apart from the legal situations that warrant the help of an attorney, here’s another reason why many people go directly to an attorney — unaware of the ways of applying for probate. However, you don’t always need a lawyer to carry out the probate process.
Oftentimes, even though it’s an easy process to apply for a grant of probate, people hire an attorney.
To get Probate, the executor specified in the will must file an application with the Supreme Court, and the court will grant it.
There are four primary methods for obtaining a Grant of Probate:
- Make your application.
- Hire probate consultants to help you with your application.
- Engage a lawyer to represent you.
- Designate a trustee company to serve as executor.
Each option has advantages and disadvantages, and determining the best manner to apply is a critical choice.
Is the executor of a will liable to Australian Inheritance taxes?
Australia has no inheritance or estate tax. The estate may have tax repercussions if it makes money before it is appropriately handled. Unless beneficiaries are currently entitled, executors of the will are liable for paying any tax on the estate’s net income.
Personal tax responsibilities may emerge after the estate has been finalised and beneficiaries have received their inheritance. For instance, Capital Gains Tax (CGT) may be due when an inherited asset is later sold or transferred. Income from inherited assets, such as rent or dividends, is taxable, and individual income tax laws apply.
As the executor of a will, you might be in one or more of these possible scenarios. Based on that, you might or might not need legal help from a professional. The correct order questions to ask yourself are:
- First, consider the specifics of the case. Are the estate assets sufficient to cover the payables, if any?
- Are there any disagreements among the estate’s listed beneficiaries?
- Is it possible to allocate the estate without engaging the probate court?
- Is the estate modest or huge in size?
- Is real estate, such as a house, involved? If so, are there any property disputes?
- Are there any difficult tax issues? Is there a federal estate tax due?
If none of the above is a concern, the executor of a will can carry out the probate process alone without an attorney’s assistance, for guidance you can discuss the complete probate process with probate consultants.