When To Hire An Estate Attorney

    At some point in the future if not already, you will be in the position to become a personal representative (formerly this was known as Executor for men and Executrix for women).  This can happen when a loved one has died and has designated you their personal representative in the will.  It can also happen when a loved one dies without a will, but you are the closest living relative to the person and obligated to file an intestate (without will) estate.  Sometimes, it can happen when you are the person who is most competent and in the best position to probate the estate.  In the event there is no will, the SC probate law does provide priority, first to living spouse and next to living children.  A question will arise in whether to hire an attorney and when to hire an attorney in the probate process.

      First, a person “can” probate an estate as a personal representative (PR) without an attorney (called “Pro Se”). In this event, the only time during the process when an attorney would have to get involved is if a Deed of Distribution must be drafted and filed.  Otherwise, the law allows individuals to file an estate and act as PR until the closing of the estate.  Before taking this option, you should be aware that the PR is a fiduciary and must follow SC law throughout the process of the estate and is accountable to heirs and beneficiaries.  If something is done wrong, the PR cannot blame the lack of an attorney in trying to avoid liability.  Additionally, if you attempt to start the probate process without an attorney, some mistakes might not be undone by later hiring an attorney, particularly if money is lost or distributed improperly.

      Estate attorneys can be paid out of the estate after a person is appointed PR, so it generally makes financial sense for the PR to hire an attorney.  If the attorney is retained prior to appointment as PR, you must pay him for the work in filing the estate, which could also involve defending the petition for PR against someone contesting the appointment.  Assuming no contest (which is the norm when a person is designated PR by the will or is a close relative like a spouse) the expenses are minimal prior to appointment as PR. 

      The Estate attorney has a primary duty to the estate and the processing of the estate by the SC probate code, but works with the PR toward completing the inventory and appraisement, any real estate sales involved, payment of creditors and estate expenses, and finally closing the estate by an accounting and distribution to devisees.  The PR oversees the process and acts as the ultimate responsible party but the lawyer (and firm) does the detailed work.

       It is best to hire an attorney at the beginning to ensure the process is done correctly, legally, and without liability on the PR. If not at the beginning, then after appointment as PR, but before starting the process involving fiduciary liability.