Do I Need a Probate Attorney?

After the death of a loved one, one of the first questions families often ask is: “Do I need a probate attorney?” The answer depends on two main issues:

1. Is probate necessary?
2. If probate is necessary, what kind of probate is required?

1. Is Probate Necessary?

Not every estate needs to go through probate. Probate may not be necessary if:

• Beneficiary designations are in place. Financial accounts with named beneficiaries generally pass directly to those individuals with a death certificate and proof of identification.
• The estate contains only personal belongings. If heirs can agree on distribution of household items or personal effects, probate may not be needed.
• The decedent had a fully funded trust. Assets properly transferred into a revocable living trust avoid probate.
• Real estate has a transfer deed. A Lady Bird Deed or Transfer on Death Deed allows real property to pass outside of probate.

On the other hand, probate may be required if:

• The decedent owned real estate in their own name without a transfer deed.
• Bank accounts or other financial assets had no beneficiary designations.
• An administrator or executor is needed to bring claims on behalf of the estate such as bringing a lawsuit or collecting money owed to the estate.

2. If Probate Is Necessary, Do You Need an Attorney?

In some limited circumstances, you may not be legally required to hire a probate attorney:

• Small Estate Affidavit. If there is no will and the estate qualifies, heirs can use a small estate affidavit. However, these affidavits are very particular, and many families still choose to have an attorney prepare and file them.
• Muniment of Title. If the decedent had a valid will, there are no debts, and no full administration is needed, the will may be probated as a muniment of title. Even here, the probate filings must meet strict requirements under the Texas Estates Code.
• Sole Beneficiary Without Debts. If you are the only beneficiary and there are no debts, you may technically represent yourself in court. However, judges sometimes require attorney involvement to ensure proper procedure.

3. When You Must Have a Probate Attorney

You will need a probate attorney when the estate has sufficient assets to justify administration, and:

• The decedent died without a will and a determination of heirship is required.
• The estate has debts that must be resolved.
• There are multiple heirs or beneficiaries with interests to be represented.

In these situations, you are representing not only your own interests but also those of others—such as heirs, beneficiaries, and creditors. Only a licensed attorney may represent those interests in court.

Why Work With a Probate Attorney?

Even when it isn’t strictly required, working with a probate attorney can make the process smoother and less stressful. An experienced attorney can:

• Guide you through the required court filings.
• Help avoid costly mistakes.
• Ensure compliance with the Texas Estates Code.
• Resolve potential conflicts among heirs or beneficiaries.

Losing a loved one is hard enough without having to navigate complex legal procedures alone. A probate attorney provides the knowledge and support you need to move forward with confidence.

If you’ve recently lost a loved one and are unsure whether you need probate or legal help, call our office today for guidance and a free consultation.