As the old saying goes, you can't take it with you when you die. That means someone is going to have to deal with it. Usually, that's a family member or a friend and often they have help from a probate lawyer. This article explains the role of a probate lawyer and why you might need a lawyer to help you through the legal process of probate.
What Is a Probate Lawyer?
Probate lawyers (also called estate attorneys) help non-lawyer clients fulfill their role as administrators, personal representatives, or executors of estates. They assist them as much or as little as they need as they go through the probate process. The probate process includes paying the deceased person's debts and distributing the assets of the estate according to the will or state law.
What's the Difference Between a Probate and Estate Planning Lawyer?
Although probate and estate planning attorneys practice in the same area of estate law, there is one primary difference.
- A probate attorney handles the process of estate administration after a person dies. They may even serve as an executor or administrator of an estate if the person has no one else to designate.
- An estate planning attorney works with living clients to draft wills, trusts, living trusts, and powers of attorney. They help families with eldercare planning. Their work can help clients reduce inheritance taxes.
A probate attorney can also be an estate planning attorney. They can do both, or they can choose to specialize in one or the other.
What Does a Probate Lawyer Do?
The range of tasks a probate attorney can do is long. What the probate lawyer actually does will depend on what the executor or administrator needs, whether the decedent had a will, how complicated the estate is, whether there are legal challenges from beneficiaries or debtors, and other difficulties with the estate property.
When There Is a Will
If the deceased person had a valid, signed last will and testament completed before they died, a probate lawyer may be hired to guide the administrator through the steps of the probate process according to the terms of the will. This is a consultative role.
If there is a challenge to the will — if a beneficiary believes the will is invalid, was signed under duress, or under the undue influence of another — then the probate attorney may represent a party in probate litigation. Maybe someone wants to contest being written out of a will. There are numerous reasons why a will might be challenged (although most wills go through probate without a problem).
When There Is No Will
If the decedent left no valid, written will, they are said to have died “intestate." When that happens, state inheritance laws determine who inherits. For instance, a surviving spouse may receive all or half of their deceased spouse's property, depending on their state's intestate laws. These laws can vary widely.
It's important to note that both the probate lawyer and the estate administrator are bound to distribute property according to state intestacy laws. Regardless of what the deceased person said while they were alive, or how much some family members need money, state law determines the distribution of estate assets.
In this situation, a probate lawyer may help a loved one go to court to be named as the estate administrator. Or they may be hired later, after the person has been named administrator by the probate court judge.
A relative who wants to be the estate's administrator must first secure what is called “renunciations" from the decedent's other relatives. A renunciation is a legal statement renouncing one's right to administer the estate. A probate attorney can help secure and file these statements with the probate court and can then assist the administrator with the probate process.
What Is the Role of a Probate Lawyer?
A probate attorney may be hired strictly to provide legal advice. Or they may be hired to perform any of the following tasks. When the executor or administrator lives out of state, they often rely more on the local probate attorney and their staff. Some law firms specialize in providing comprehensive services for just this circumstance.
- Find, inventory, and secure the decedent's estate, including the decedent's savings account and checking account, their personal possessions (called real property), vehicles, real estate, and more
- Identify and collect on life insurance policies
- Secure appraisals for the decedent's assets
- Manage the estate's checkbook
- Secure a tax account or work with an in-house account to prepare the deceased person's final income tax filing, and estate tax returns.
- Determine the validity of certain debts and advise on the payment of debts
- Prepare and file documents required by a probate court
Do You Need a Probate Lawyer?
It's not always necessary to hire a probate lawyer. The probate court itself can be very helpful to executors and administrators. Before you hire an attorney, ask yourself:
- Have you handled the probate of an estate before?
- Can the estate be distributed without probate?
- Does your state have a relatively easy probate process?
- Will the family members named in the get along with each other?
- Is the money in the estate sufficient to pay its debts?
If you answer yes to some or all of these, you may not need to hire a probate attorney immediately. Should a problem arise later, you can always hire one then.
How Much Do Probate Lawyers Charge?
Probate lawyers use one of three methods to charge their clients:
- An hourly rate for services
- A flat fee
- A percentage of the estate's value
The exact amount of fees will depend on the attorney's experience, the going rate in the area where the attorney practices, and the legal matters to be addressed.
What Questions Should You Ask a Probate Lawyer?
If you decide to retain a lawyer for a probate case, consider asking the following questions.
- Do they specialize in probate law? Ask if they have handled a case like yours before.
- What services can they provide?
- Will the lawyer personally handle your case?
- How does the lawyer intend to charge you?
- What is the process involved in your specific case?
Speak to a Licensed Attorney to Get Help With the Probate Process
If you have never handled the probate of an estate before, or you think you may run into problems with a large or complicated estate, talk with an experienced probate attorney. You can hire a lawyer to provide as much or as little help as you need.