Should I Hire An Attorney for a Small Estate When Probate Is Not Necessary?

When to Hire A Probate Attorney in Illinois | Who Is Responsible for Probate Attorney Fees?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

In this article we explain when you should hire a probate attorney in Illinois, including: “should I hire an attorney for a small estate when probate is not necessary?”,  “is an attorney required for Illinois probate estates?”, “when should an executor hire a probate attorney?”, and “who is responsible for probate attorney fees in Illinois?”

Should I Hire An Attorney for a Small Estate When Probate Is Not Necessary?

Estates that are small and can be distributed through a Small Estate Affidavit do not require an attorney to settle the distribution. However, there are still reasons an executor would want an attorney. Probate rules can be hard to find and understand and even Small Estate Affidavits are typically subject to the same or similar rules as normal probate cases. Also, the executor is liable for any mistakes that are made when distributing the property or paying off debts and can be sued if the process is done wrong or if one of the beneficiaries does not receive their correct share. To avoid being sued by beneficiaries and to make sure that the executor has a thorough understanding of the rules and requirements, an attorney can be a useful tool even for small estates.

Is an Attorney Required for Illinois Probate Estates?

The Illinois Probate Act does not require executors to hire an attorney for probate cases. However, just as in Small Estate Affidavits, an executor may still be interested in legal representation for the estate. An attorney can help secure a surety bond for the probate hearing, which is usually required to protect heirs from mistakes that may be made in the property distribution. Securing a surety bond becomes more difficult without an attorney because mistakes are more likely to be made and the companies will therefore charge a higher premium. The executor is still liable if mistakes are made, and due to the complexity and time that a probate case can take, there are many mistakes that can be made. To avoid being sued, have someone else to deal with unhappy heirs and understand how probate works, an attorney may be necessary for probate cases.

When Should an Executor Hire a Probate Attorney?

When Should an Executor Hire a Probate Attorney?

Hiring an attorney can be helpful for executors because they can receive legal advice about state rules and probate in general as well as how best to distribute the property. The necessity of an attorney also depends on the types of assets that are left to be distributed, how much the estate is worth and whether or not the family is going to contest the will.

How much money is in the estate and what kind of assets the estate owns can be major deciding factors in determining whether or not an executor should hire an attorney. The types of assets that are included in an estate can determine whether or not the estate needs to go through a probate hearing in order to distribute the assets. The amount of money an estate is worth is important in determining whether or not there is enough money in the estate to pay the debts that are owed, if there is not enough to pay outstanding debts, an executor should highly consider hiring an attorney because different states have different rules about which creditors should be paid first.

If a will is going to be contested by the family, an executor will need to hire an attorney because contesting the will introduces different legal issues that must be resolved accordingly.

Who is Responsible for Probate Attorney Fees in Illinois?

Paying for an attorney is usually taken out of the estate as an administrative fee. The primary exception is when part of the attorney’s bill is used to defend the executor’s own malfeasance.  Although executors and beneficiaries may be hesitant to hire an attorney because of a fear of it being costly, it is typically not as expensive as people imagine.  

Hiring an attorney in probate cases as well as in smaller estate cases is often the smartest thing for an executor to do because it will help the executor ensure that assets are distributed properly, reduce the likelihood of the executor being sued, and will usually speed up the probate process.

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Is an Attorney Required for Illinois Probate Estates?

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