What Is Probate and Estate Administration?

Most people own assets or carry debt at the time of death. A deceased person's property is known as their estate. Probate administration generally refers to distributing a deceased person's estate.

Probate also more narrowly refers to the process of validating a will. It's the legal process of determining whether the last will and testament is valid. The personal representative or an executor nominated in a will and appointed by a probate court carries out the probate process.

Distribution of a Person's Estate

Each state has its probate code, a set of laws governing what to do with the estate. These laws also explain how to accommodate the decedent's estate plan.

The distribution of a person's assets occurs in one of two ways. If the decedent had a last will and testament, the estate will be divided accordingly. Estate administration will proceed according to the directives in the will.

A decedent without a will is said to have died intestate. In such cases, the deceased person's property is distributed according to state laws of intestate succession. A state's intestacy laws control the probate process when the deceased person dies without a will. State law determines an estate's beneficiaries when someone dies intestate.

The state's probate court system carries out the estate administration process. The state's probate court system oversees the probate case. The probate proceeds until the estate closes. Closing an estate can occur once a person's assets are distributed and liabilities paid.

Terms to Know

• Federal estate taxes: Taxes the IRS levies on certain estates for property transfers after death
• The executor of an estate: The person who ensures the disposition of the estate occurs according to the deceased's wishes
• Personal administrator: The person charged with disposing of a deceased's estate if that person died without a will
• Testator: The legal term for the person who wrote a will
• Intestate: Without a legally valid will

See FindLaw's estate planning glossary for more estate planning and administration terms. Learn more about state-specific laws on FindLaw's probate and estate administration legal answers page.

Getting Legal Advice for Estate Planning and Probate Administration

Estate planning and estate administration are closely related legal practice areas. Many attorneys who practice estate planning also do estate administration. Probate attorneys specialize in probate laws and estate administration. As such, probate lawyers focus on what happens after someone dies.

On the other hand, the attorney focusing on estate planning works with clients to plan for an estate while the person is living. The estate planning attorney will get to know you and your family's situation and listen to your goals. The attorney will ask a lot of questions. They need to determine the scope of your estate assets, the value of the estate, and your family composition.

For example, very wealthy families need to engage in federal estate tax planning to minimize the impact of these taxes. On the other hand, if you have a simple estate or a small estate, your attorney can advise you on how to streamline or eliminate the probate process.

Comprehensive Estate Plan

An estate planning attorney can help you create a comprehensive estate plan. This plan may include documents such as:

• Last will and testament
• Living trust
• Power of attorney
• Living will
• Advanced health care directives

Beneficiary Designations

An estate planning attorney will also advise you on the importance of keeping beneficiary designations up to date on bank accounts, life insurance policies, and retirement accounts. When you do this, these assets can be distributed directly to beneficiaries at your death without going through probate. The beneficiary designations control those particular assets even if there are contrary directives in your will regarding certain assets.

Real Estate

An estate planning attorney can also advise on how to title real property so that the property transfers without going through probate. For example, when you title a property as joint tenants with the right of survivorship, the property automatically transfers to the surviving owner by operation of law. An attorney can explain your legal options for real estate or any other questions relating to your estate plan or probate matters.

Engaging an Attorney to Help

Once you determine you need the assistance of an estate planning attorney or probate lawyer, find the best one for you. A good way to find a lawyer is by getting a referral from a family member or trusted friend. FindLaw also provides a listing of local estate attorneys.

An Attorney Can Look After Your Interests

Estate planning attorneys need to understand how their strategies will impact estate administration. Administration attorneys need to understand all the various estate planning techniques. In all cases, your attorneys should handle your case to minimize the risk of probate litigation or a will contest.

Ask About Costs

You should ask about fees when you are researching attorneys. Ask about the fee structure at the first meeting or consultation, if not before. Your attorney should be willing to discuss attorney fees with you upfront.

Estate planning attorneys usually charge a flat fee or a flat rate, which may vary depending on the size and complexity of their client's assets and family structure. The attorney will consider the documents required to implement the plan.

Estate administration attorneys often charge a percentage of the estate after taxes. Both types of attorneys can use an hourly rate structure. With an hourly rate fee structure, the attorney will charge a certain hourly rate and multiply it by the time it takes to do the work. You will usually get billed monthly when the attorneys use an hourly rate fee structure.

Related Practice Areas

• Estate planning: Estate planning attorneys write wills and trusts to distribute the testator's assets after death properly.
• Tax law: Some estates are taxed heavily. A thorough understanding of tax law is essential to the estate planning process.
• Elder law: Estate planning and administration must change as testators age. An elder law attorney knows how changing life circumstances affect estate plans.
• Real estate: One of the major assets decedents leave behind is their real estate. Real estate attorneys may be necessary to make the transition go as smoothly as possible.
• Family law: Estate administration attorneys must review past marriage certificates, divorce decrees, and support orders to understand which family members should inherit.