I've Been Named Personal Representative: Do I Need An Attorney?

A personal representative can often handle an estate without an attorney, but in some situations, it may be necessary to seek legal counsel. Often this is determined by the type and value of the assets in the estate, whether or not the Decedent had creditors and family dynamics that might make an attorney necessary. Here are some things to think about when making this decision:
No Legal Counsel - As we mentioned, many people successfully handle estates without any legal assistance. Although our local probate courts can't give legal advice, they do their best to be user-friendly and provide as much information as possible to those handling it on their own. Unlike some states, there is no requirement in South Carolina that the estate has legal counsel. That being said, many people become overwhelmed or confused during the process. Others find themselves making costly mistakes simply because they didn't know any better. For those beginning the estate process and hoping to do so without the legal expense, we often recommend coming in for a reduced fee consult so that you can sit with an attorney for an hour to better understand your duties, the required forms and the possible pitfalls you should try to avoid. A consult does not obligate you to hire our firm and we are thrilled when we can answer your questions well enough that you can handle it on your own.    

Partial Representation - Hiring legal counsel doesn't have to be an all or nothing proposition. It's often practical and recommended to seek legal counsel for limited purposes. One common example involves estates containing real estate where clients come to us frustrated over trying to record a deed of distribution or clear title to a piece of property. For a flat fee, an attorney can assist solely in the proper preparation and execution of the required deeds. Another example includes an estate that is taxable and may need legal counsel solely to handle the tax-related issues. The best way to find out if your situation will work for a partial or limited representation agreement is to schedule a consult with the attorney of your choice.  

Full Representation - There are certain situations where a Personal Representative is at risk of being sued for trying to handle the estate without legal counsel. Examples generally include estates with more creditors than assets, estates containing diverse or incredibly valuable assets, estates involving unidentified beneficiaries or beneficiaries with adverse interests, or those where litigation seems imminent. If you have been named as Personal Representative of an estate that will likely require full representation, it's best to interview attorneys early, make sure to take advantage of reduced fee consults and find an attorney that understands the type of estate you're handling and will work with you on various methods of payments when the estate is low on cash.  
When deciding whether or not you need representation, there are a few final points to remember:
  • When you agreed to serve as the Personal Representative (PR), you agreed to perform all of the duties in the name of the estate. Failure to properly manage the estate or deal with creditors or state or federal tax issues in a proper manner could expose you to personal liability.
  • Hiring legal counsel does not impact your ability to be paid your PR commission. 
  • To our knowledge, no Personal Representative has been successfully sued for securing legal counsel; however, many Personal Representatives have been sued for failure to do so. At the very least, get a consult. 
  • Attorney's fees are paid by the estate, not by the Personal Representative individually.
The probate process is time-consuming, intimidating, and stressful. An attorney can help ease the burden. Don't wait too late to find out how we can help - reach out for a consult today.