Do I Need a Lawyer for Probate?

It may be best to hire a probate lawyer, even if it is not required. The probate process can get complicated.

Have an Attorney Assist You With the Probate Process

Whether you hire an attorney depends on the facts of the specific case. It depends on what's included in the probate estate. Ask the following questions to determine the best option:

• Does the state or local probate law require an attorney to probate the estate?
• Are the estate assets enough to pay any outstanding debts?
• Are there disputes between family members or named beneficiaries of the estate?
• Can the estate be distributed without involving the probate court?
• Is the estate small or large?
• Are there complex legal matters?
• Is there real property (such as a house) involved? If so, are there disputes on the property?
• Are there complicated tax issues involved? Does the estate owe federal estate tax?

If any of the above is an issue in your case, get a lawyer's help. Taking this step will bring you great peace of mind. You may need a one-time consultation regarding probate administration, or you may need representation throughout the matter. When probate litigation is at issue, you'll want to have representation to protect the estate's best interests.

What Does a Probate Attorney Do?

A probate attorney mainly gives legal advice regarding estate administration. The attorney's role will differ based on whether the decedent had a last will and testament or if they died intestate (without a will).

An attorney can help you with the following:

• Transferring real estate and other assets to beneficiaries
• Paying outstanding debts
• Collecting proceeds from life insurance policies
• Resolving tax issues, including income tax, federal estate tax, and estate tax return issues
• Preparing and filing legal documents as required by the probate court

How Much Does a Probate Lawyer Cost?

The exact fees of a probate lawyer will depend on several factors:

• The attorney's experience
• Whether they specialize in probate cases
• Geographic location
• The complexity of the case

A probate attorney may charge you by:

• The hour
• On a flat-fee basis
• A percentage of the estate.

Make sure to settle this with your attorney before you hire them. Experienced estate and probate attorneys will be more than happy to discuss their fee structure for legal services.

The Probate Process

Whether an estate has to go through probate depends on state law. Some states, for instance, have simplified procedures to transfer property. Small estate processes are typically available when an estate does not exceed a particular value.

The probate process begins once someone dies. At that point, someone must start working on the deceased person's behalf. This person will work on the estate's behalf.

The process will vary based on whether the person has a will. In either case, the probate court supervises the property distribution. How much oversight the probate court has varies. The process varies by state and the terms of the will.

Testate vs. Intestate Probate

If a person wrote a will, it means the person died testate. In these cases, the property will transfer according to the instructions or designations in the will. You can DIY a will specific to your state if you do not already have one.

However, if the person dies without a will (intestate), the state's intestate succession laws will be applied. Distributions occur according to the law of intestacy.

If there is a will, the person who died will usually have named a specific person as executor. This person is in charge of managing the decedent's affairs.

If, however, the decedent did not name an executor or if they died intestate, the court will appoint a personal representative to act as an executor.

How Long Do Probate Proceedings Take?

How long probate takes depends on several factors, including:

• The size and complexity of the estate
• The number of beneficiaries
• If there are issues with the will
• If taxes and debts need to be paid

The complexity of the case is usually one of the most significant factors. In a simple case, the probate process may take about a year. The process can take over a decade in the most contentious cases.

A Comprehensive Estate Plan Can Improve the Probate Process

During life, you can help loved ones by creating a comprehensive estate plan. Working with an estate planning attorney allows you to make a plan. The estate planning lawyer can explain various estate planning tools.

Ensuring your estate planning documents are in place is always a good idea. Whether you approach this process in tandem with other elder law issues or at the end of life, getting it done is critical. Of course, the sooner, the better.

Legal documents in your estate plan provide directives to family members and loved ones. Knowing your wishes when you can no longer make them known due to death or incapacity goes a long way.

Estate planning attorneys are the attorneys that help individuals with their estate plans under applicable estate law. They will discuss your situation and create the right plan for you.

Typical documents in a basic estate plan include:

• Last will and testament
• Power of attorney, including a durable power of attorney or financial power of attorney
• Living will
• Revocable living trust
• Advanced health care directives

You can address issues related to:

• Long term care
• Minor children
• Dependents
• Individuals with special needs
• Any other estate planning issue

Your set of documents and needs addressed depends on your circumstances.

An Estate Planning Attorney Can Be a Valuable Resource

You can contact an estate planning attorney at a local law office to assist with a plan. Further, establishing a client relationship with an attorney can be valuable.

Attorneys can be a great resource if you ever require assistance with particular practice areas, including:

• Family law
• Personal injury
• Trust administration

They can provide referrals to trusted colleagues with extensive experience on various legal issues.

Most relevant to this article, if you are in a position where you are helping a loved one probate an estate, getting legal advice from a probate lawyer is a good idea.

Additional Resources

• What Is a Probate Lawyer?
• The Probate Basics
• Probate Process and Timeline

Have an Attorney Assist You With the Probate Process

Navigating probate is challenging. It requires you to know your state's specific probate rules and procedures. If you are an executor or are involved in a probate process, speak to an experienced attorney near you to get proper legal advice.