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Kevin O'Flaherty

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 standard probate cases. Also, the executor is liable for any mistakes 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. An attorney can be a valuable tool for small estates to avoid being sued by beneficiaries and ensure the executor understands the rules and requirements thoroughly. 

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 charge a higher premium. The executor is still liable if mistakes are made, and many mistakes can be made due to the complexity and time that a probate case can take. An attorney may be necessary for probate cases to avoid being sued, have someone else deal with unhappy heirs, and understand how probate works.

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 left to be distributed, how much the estate is worth and whether or not the family will contest the will.

How much money is in the estate and what kind of assets the estate owns can be significant deciding factors in determining whether or not an executor should hire an attorney. The types of assets included in an estate can determine whether or not the estate needs to go through a probate hearing to distribute the assets. The amount of money an estate is worth is vital 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 misconduct. Although executors and beneficiaries may be hesitant to hire an attorney because they fear it being costly, it is typically not as expensive as people imagine. 

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

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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