When You Don’t Need a Probate Lawyer

Video

Good morning. It’s Andy Stautz at Stautz Law, and I am back for another talk about Indiana estate planning and probate topics. Today, I’m telling you about when you don’t need a lawyer.  

So this one’s great because, you know, instead of saying, oh no, I need a lawyer, that’s scary, you know, it’s going to cost money, whatever. Here’s when you don’t need one. Specifically in the probate context, we’re just talking about probate here.  

General Rule: You Need a Lawyer for Estates in Probate Court

If someone dies, you need to do something with their property. Usually that’s where you start thinking, okay, yep, we need to do a probate. And in most of the counties I practice in, you know, here in central Indiana, broadly defined, the local rules usually require that you have a lawyer if you’re going to court. So most of the counties around here don’t want you DIYing an actual probate case in court.  

But: You Don’t Need a Lawyer if the Estate’s Not in Probate Court

But here’s when you don’t need a lawyer. You don’t need a lawyer if you’re not doing a probate. So for instance, if a person sets up designated beneficiaries on all of their bank accounts, brokerage accounts, life insurance policies, and that’s all the property they have, then that’s all non-probate transfers. We’ve talked about this in other videos. I will link them. All those non-probate transfers, you don’t need to go to the probate court. Instead, you’ll get a packet of paperwork from the brokerage company, from the bank, from the life insurance company. And it’ll have instructions for you. It will say, you know, here’s how you, you’re the designated beneficiary, here’s how you claim it, and you follow the instructions, and you just deal with . . . the company. And as long as you do that paperwork right, you got to read the instructions and follow the instructions. But as long as you do that paperwork right, you don’t need a lawyer for that.  

Obviously, if you are having trouble with that paperwork, you can call me and I will certainly represent you as you do that. But you don’t necessarily need one because you’re not in front of a court.  

Trust Administration

Okay, so same thing with, for instance, a revocable trust-based plan. If the decedent had done some good estate planning beforehand, transferred all of her assets into a trust, had a successor trustee who knows what’s going on and is ready to take up the job, again, you bypass probate, trust administration carries on just like it was. You don’t need would most trustees benefit from having a lawyer? Probably at some point, but again, a diligent successor trustee who’s been shown the ropes already in advance with good planning. Again, you can administer it. You can administer a trust without needing a lawyer or needing new lawyers.

DIY Indiana Small Estates

Okay, and finally, there’s the situation of a small estate affidavit, okay? This is for estates of less than $100,000 that don’t include real estate, generally, okay? Just, we’re not talking about all the details, but, so for certain small estates, if a person died with little property, almost no property, You don’t need a lawyer to fill out a small estate affidavit and present it to the bank or present it to the BMV.  

And the BMV has a form, like has a title transfer form where you can say it’s a small estate. And legal aid or one of the Indiana legal aid providers also has a sample small estate affidavit. And I’ve got one kicking around somewhere. So I might link that.

So this is kind of like the designated beneficiary situation where, if you’re using the small estate procedure, you’re not going to the probate court. So you don’t need a lawyer to represent you in court, but you still need to like understand what you’re doing, right? You still need to be able to fill out the form correct, like read it, fill out the form correctly, you know, go present it to the bank.  

And obviously when you do that, you are also taking upon yourself the responsibility of dividing the property up after you gather it. Okay. So the small estate affidavit, you know, it needs to be a small estate. It probably also should be somewhere, something where the heirs trust each other, right? Because there’s no court supervision. But that’s a separate talk. Okay.  

And again, with a small estate affidavit, you know, is it DIYable? Yes. right? There are forms out there, you can use them. But if you run into trouble, if the bank is recalcitrant or if you’re just worried about doing it wrong or, whatever, I help people prepare those all the time. I mean, that’s a smaller scale representation than a full probate, but happy to help.  

Conclusion

So that’s kind of three scenarios to get your mind going on. Okay, sometimes it’s possible to administer an estate without needing to hire a lawyer. So if you choose that, you know, Good luck. I think you can do it with diligence.  

If you get into more complicated situations and you run up against something, that’s what I’m here for. I help people with these issues every day. So you’re on my website, but give me a call or an e-mail, and I’d be happy to talk about potential representation in the future. Hope you enjoyed this general informational talk. That’s all for today. Bye.