When should you hire an estate lawyer?

Certain situations are more likely to benefit from an estate planning lawyer.

Derek Silva

Derek Silva

Published July 30, 2020

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KEY TAKEAWAYS

  • Someone with a simple situation, like passing a small estate all to one person, may not need to pay for a lawyer’s help

  • Business owners and people with assets in other states or countries should consider hiring a lawyer

  • Your documents could be more complex if you care for someone who is incapacitated or has special needs

  • To leave assets to a stepchild, stepparent, or half-sibling, consider working with an estate lawyer

An estate lawyer is trained in matters related to passing on your assets after you die, and planning for situations where you can no longer care for yourself. They are experts in wills, trusts, and your local probate process. Some estate lawyers may also have specialties, like planning the succession of a business. You may also see an estate lawyer called an estate planning lawyer, an estate attorney, or an estate planning attorney.

Most people could benefit from working with an estate planning attorney, but it may not be necessary (and you may not want to pay for it) in many situations. On the other hand, people in certain situations may need the help of an expert to ensure their estate plans are comprehensive and accurately state their intentions.

This guide will explain some of the situations when you may want to look for an estate lawyer instead of trying to write your own estate planning documents. If you’re unsure where to start, try our complete guide to estate planning.

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Situations when you should hire an estate lawyer

Everyone’s financial situation is different and it’s difficult to say that you should or should not hire an attorney, but here are some common situations where you may want to consider hiring an estate lawyer instead of doing things on your own:

You’re a small business owner or a business partner who needs to plan business succession.

You have out-of-state property or assets. Passing on assets can get tricky if they’re crossing state boundaries, since two states may have different tax codes or other legal requirements for how to transfer an asset.

You have foreign property or assets.

You’re planning to bequeath assets to someone who isn’t a citizen. You could also run into issues if you plan to name an executor who isn't a legal U.S. resident. Certain tasks, like getting a tax ID to open an estate account, may not be possible for nonresidents.

You want to disinherit immediate family. This may be harder in some areas, like in community property states, where you and your spouse share ownership of your assets.

You have a blended family, and want to bequeath assets to a stepchild, stepparent, or half-sibling. These individuals most likely won’t receive any of your assets unless you take deliberate steps to ensure they do.

Related article: How to find an estate planning lawyer

You have immediate family members with special needs or who will require a guardian. If you provide care for anyone who has special needs or is incapacitated (cannot care for themselves) then you probably need to appoint a guardian for them in your estate planning documents. Guardianship is a serious matter because the guardian will need to make decisions on behalf of the individual, potentially including how their money is handled, what kind of healthcare they receive, and end-of-life decisions. An estate lawyer can help you create a robust plan that’s tailored to your specific needs and your desires.

You receive Medicare payments on someone’s behalf. In this case, you’ll likely need to appoint guardianship for the person whose payments you received, as mentioned in the previous paragraph.

You receive care through Medicaid. If you receive long-term care or other services through Medicaid, the Medicaid Recovery program may seek repayment by claiming some of your estate, like your house, after you die. This only happens if you aren’t survived by a spouse or child, but a solid estate plan will protect your assets and allow you to pass on as much of your estate as possible. If this is your situation, you may want to look for an estate lawyer who specializes in elder law.

You want to set up an irrevocable trust. An irrevocable trust likely can’t be closed or changed once you create it, so it’s best to talk with an estate attorney first to understand whether or not it’s the best option for you. If your goal is simply to pass on assets without going through probate, a revocable trust is probably enough and you could create one without a lawyer.

One situation where you may want an irrevocable trust is if you have a dependent with special needs and want to provide them income without disqualifying them for Medicaid or supplemental security income (SSI). You may also consider an irrevocable trust if you want to decrease your estate value to qualify you for Medicaid, if you want to create a charitable trust, if you are trying to avoid the estate tax, or if you need asset protection from creditors and lawsuits.

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Personal Finance Expert

Derek Silva

Personal Finance Expert

Derek is a tax expert at Policygenius in New York City. He has written about multiple personal finance topics in the past, and his work has been covered by Yahoo Finance, MSN, Business Insider and CNBC.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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