Do I need a lawyer for probate court if there is no Will or Trust?

UPDATED: Jan 20, 2015

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Do I need a lawyer for probate court if there is no Will or Trust?

Asked on January 20, 2015 under Estate Planning, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

First of all, probate isn’t always required. If the deceased person owned assets in joint tenancy with someone else, or as survivorship community property with their spouse. Also, POD (payable upon death) accounts need not be probated. Additionally, assets that are inherited by a surviving spouse or registered domestic partner can be transferred with a simplified procedure; while the probate court is involved,the process is relatively fast and easy. Finally, if the total value of the probate estate is small enough, probate may not be necessary; heirs/beneficiaries can claim assets with either an affidavit) or through a summary probate process. 


If probate is necessary and there is no Will, then a family member, close friend, etc. is appointed as the “administrator” of the estate. Their job will last about 6 months to 1 year. The administrator will have to gather the assets, pay all bills and distribute the remaining estate assets to the heirs. Depending on the size ad complexity of the estate, the administrator may or may not want to consult with an attorney, In most states, while lawyers charge by the hour or collect a flat fee, in CA, lawyers charge a fee which is an amount equal to a percentage of the value of the assets that go through probate (and is more fully laid out in the applicable statutes).

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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