WHAT IS A PROBATE LAWYER? Here’s Everything You Should Know

What is a probate lawyer
Image source: Sweeny Probate Law

In cases where it is necessary, probate begins soon after the death of the deceased. While you may decide to go through the probate process alone, a probate lawyer can come in handy. This guide contains everything you need to know about the probate lawyer and how one can help you through the probate process.

What is a Probate Lawyer?

A probate lawyer is a state-licensed lawyer who can assist the Executor of a Will (if one was appointed) or the beneficiaries of an estate in navigating probate as they work to settle an estate. Their services could typically include everything from locating and inventorying the estate’s assets to understanding and paying any debts the estate may have, as well as distributing and settling the estate.

Probate lawyers are also qualified to assist with the Estate Planning process, though they typically charge a high fee for the basics such as establishing guardianship, creating a Will, or writing a Trust.

The range for a probate lawyer fee will vary because they can charge by the hour or a flat fee, and in some states, fees are determined by the size of the estate.

What Does a Probate Lawyer Do?

Probate lawyers, also known as probate attorneys, are hired to assist with the administration of an estate. Following the death of a loved one, their Estate Plan dictates the next steps. If they have a Will, probate will be required. Trusts do not go through probate, which can make the process less complicated and much more private. Even if there is only a Trust involved (and no Will, so no probate), a probate lawyer could still assist the Trustee in administering the Trust.

Who does a probate lawyer represent? Probate lawyers typically represent an heir to an estate (a beneficiary), the personal representative, or the estate itself. They can occasionally play multiple roles, though this is uncommon.

A probate attorney can help the Executor and beneficiaries with a variety of tasks, including:

  • Obtaining life insurance policy proceeds
  • Calculating and paying inheritance taxes
  • Calculating and paying any estate or income taxes that may be owed
  • Identifying all estate assets
  • Making final distributions after paying all bills and taxes
  • Opening and managing the estate’s checking account
  • Ordering real estate appraisals
  • Paying off debts and final bills
  • Preparing and filing all court documents
  • Putting assets in the names of beneficiaries

When Is a Probate Lawyer Required?

A probate lawyer is not required in every case. Often, an individual can handle the probate process without the assistance of an attorney. A probate lawyer, on the other hand, is a valuable asset in more complex cases, or in any case where the appointed executor of the estate is uncomfortable handling the probate process on their own.

The executor is accountable for:

  • Completing court forms
  • Notifying the heirs named in the will or determined by the court
  • Transferring assets and changing their legal ownership
  • Paying the deceased’s taxes and debts
  • Paying for funeral expenses
  • Documenting and reporting to the court on all estate-closing activities

A probate lawyer can assist you if you are uncomfortable or unsure about any of these steps. You should also consider hiring a probate lawyer if:

  • The will’s instructions are ambiguous.
  • There is no will and the deceased has significant assets, or there is a dispute over the distribution of the assets.
  • You doubt the will’s validity.
  • You are unaware of your state’s succession laws.
  • The deceased had complicated assets such as royalties, mineral rights, or business ownership.
  • The estate is bankrupt because it has more debts than assets.

Who Hires a Probate Lawyer?

When a person dies, an executor or administrator is appointed to handle the estate and distribute assets. The executor of the estate is named in the deceased individual’s will. If there is no desire, the state appoints an administrator. Each state has guidelines that specify who will serve as administrator. In many cases, this is the surviving spouse, children, parents, or siblings, in that order.

In some situations, the court may overrule the will and appoint a different executor. State laws may forbid an individual from serving as executor of a will if they:

  • Had a business with the deceased
  • Are under the age of 18
  • Have been convicted of a serious crime
  • Live out of state

The executor or administrator has the option to decline this responsibility, in which case the court will appoint someone else. Once identified, the executor or administrator is responsible for securing a probate lawyer to assist with the probate process. The probate lawyer’s fees are typically paid from estate assets. These expenses are deducted from the assets before they are divided, thus the executor of the estate will not have the lawyer’s fees deducted solely from their share of the inheritance.

A Probate Lawyer’s Duties

Probate lawyers can provide a variety of services. You may want a probate lawyer who will handle all aspects of probate or one who will simply answer questions while you handle the paperwork and asset distribution yourself. Before selecting a probate lawyer, discuss your requirements and reach an agreement on the extent of engagement you require.

How a Probate Lawyer Can Help With a Will

If the deceased person left a will, the probate lawyer will typically begin by proving the will’s validity. The document will be reviewed by the lawyer to ensure it was properly drafted. A will may be declared invalid by the court if:

  • It was not signed by the testator (the person leaving the will) in accordance with state laws that establish witness requirements.
  • When writing the will, the testator’s mental capacity was impaired.
  • The testator was forced to submit to the will of another.
  • It was fraudulently carried out.

If a will is being challenged, you should consult with a probate lawyer who specializes in lawsuits involving a deceased person’s estate. These are known as probate litigators or estate litigators.

How a Probate Lawyer Can Help You With Your Estate

The presence of a will typically makes estate administration easier. In the absence of a will, state laws govern estate distribution. In either case, a probate lawyer can assist in determining how the deceased individual’s assets must be handled. This lawyer can also help with paperwork and distribution as needed.

A probate lawyer may be responsible for the following duties:

  • Notifying heirs, beneficiaries, and creditors of the probate.
  • Communicating with beneficiaries, resolving disputes, and answering their questions
  • Obtaining court approval for certain actions, such as the sale of property
  • Assisting with the sale of the deceased’s property
  • Having real estate and other assets retitled
  • Obtaining appraisals for the deceased’s property
  • Locating and securing all assets, such as retirement plans
  • Calculating and paying taxesq1 you àqq1
  • Assessing the deceased’s outstanding debts and final bills
  • Managing the estate’s checking account
  • Obtaining the proceeds from life insurance policies
  • Examining important deadlines, such as those for creditor claims and court hearings
  • Distributing assets to beneficiaries
  • Completing and filing documents required by the probate court

A probate lawyer is especially useful when dealing with the legal complexities of certain situations, such as the sale of the deceased’s property. You can sell estate property during probate, but there are some special considerations to keep in mind. Here’s an article about how a probate attorney can assist you when selling property.

The Advantages of Hiring a Probate Lawyer

Probate can be a complicated process, especially if the deceased had a large estate. When probate is completed, the executor or administrator must file a final account of all their estate-related activities. This includes a detailed account of all assets received and bills paid. It’s critical to keep accurate records of sales gains and losses, as well as the final distribution of any remaining funds.

A probate lawyer provides additional protection for the executor or administrator in relation to these documents. If a lawyer is not retained, the executor or administrator is solely responsible for any errors in these filings. A good probate lawyer will ensure that all accounting is handled correctly, sometimes consulting with an outside accounting firm for more complicated cases.

A probate lawyer also provides objectivity when dealing with the estate. The death of a relative or loved one can be a difficult time for those who were close to the individual. A probate lawyer can provide a balanced and unbiased judgment in any disputes that may arise by stepping back from the heightened emotions that others are dealing with.

Working with an experienced lawyer can make it easier to handle dispute resolution and other sensitive issues during this trying time.

Do I Need a Probate Lawyer?

Whether or not you need a probate lawyer is determined by a variety of factors and scenarios. Consider the following:

  • How complicated are your state’s laws?
  • What kind of estate plan did the decedent create?
  • Did they have a Will? A pact? Both? Is there nothing?
  • What is the size of the estate?
  • Is there any squabbling among beneficiaries?
  • How complicated are the assets and beneficiary designations?

If the decedent only left a Will, there’s no getting around it: you’ll have to deal with probate. So the next logical step is to assess how complicated the estate is, and thus how difficult probate will be. Obviously, the more complicated an estate is, the more alluring an attorney may seem. If the decedent had a well-established Trust, a probate attorney may not be required at all.

Questions to Ask a Probate Lawyer

Here are some questions you can ask a probate lawyer to determine whether he’s the right fit for you:

#1. “How long have you been doing estate planning or probate law?”

Obviously, the longer he or she has been in practice, the more experienced they will be in getting the job done quickly and efficiently for you.

#2. “Do you have any other areas of law that you practice?”

An attorney may be able to take on probate issues, but might more routinely practice a whole different area of law. If they are unfamiliar with the nuances of estate law, you may end up paying the price, both literally and metaphorically, as costly and timely delays may result from their lack of experience.

#3. “Have you practiced before the court my case will be assigned to?”

Judges and counties will have their own slight variation of rules and unique ways of proceeding. And so, finding a probate attorney who’s familiar with a judge’s preferences can make the process a lot smoother.

#4. “How long do you estimate my case will take before the estate will be settled?”

This one can widely vary. It’s not common that a probate case takes years, but it’s been known to happen. The longer things take, the more expensive they can become; knowing how long your attorney expects the process to take ahead of time can be beneficial (particularly if they will be charging you hourly). Keep in mind that there may be unexpected delays.

#5. “Have you previously handled cases similar to mine?”

It’s especially important to know your attorney’s experience if your case is complicated or the estate is large. This could be the most crucial question you ask.

To summarize,

While you can often handle the probate process on your own, some estates are complicated or large enough to warrant the services of a professional. Hence, you need a probate lawyer to assist you. The decision to hire a probate attorney is influenced by a number of factors. You should also think about how comfortable you are with probate, how complicated your state’s laws are, and how large or extensive the estate itself is.

Frequently Asked Questions

Do I need a probate lawyer in Texas?

Yes, most courts in Texas require a lawyer to be present in a probate case.

Does a will avoid probate in Ohio?

A will does not avoid probate in Ohio.

how long does probate usually take in California?

The probate process in California usually takes about 6 to 18 months.

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