What Does a Probate Lawyer Do?
Why You Can Trust Us
You are not required by law to hire a probate lawyer, but it may be in your best interest to do so since the probate process can get complicated. Whether or not you decide to hire an attorney will depend on the specifics of the case and what is included in the probate estate.
Also known as a probate lawyer, probate attorneys are hired to help settle an estate. After the death of a loved one, their Estate Plan dictates the next steps. If they have a Will, probate will be necessary. Trusts won’t go through probate, which can sometimes make the process a bit less complicated and much more private. But even if there is only a Trust involved (and not a Will, thus no probate), a probate attorney could still help the Trustee administer the Trust.
Who does a probate attorney represent? Probate attorneys generally either represent an heir to an estate (a beneficiary) or the personal representative or the estate itself. Though it rarely happens, they can occasionally play more than one role.
This one can widely vary. It’s not often that a probate case takes years, but it’s been known to happen. The longer things drag on, the more expensive they can become - knowing ahead of time how long your attorney estimates the process to be can be helpful (particularly if they will be charging you hourly). Keep in mind, there can be unanticipated delays that arise.
Probate can be long, arduous and stressful...not to mention expensive and time consuming. Navigating it on your own can feel like just too much after losing your loved one.
If needed, probate begins soon after you lose a loved one. Probate is a legal proceeding validating a Will (in cases where the decedent has one) to settle an estate. If the decedent passes away without a Will (or other Estate Plan in place), it’s said he or she died intestate, and the estate would go through probate in this instance, too.
If the decedent had just a Will, there’s no way around it: you’re going to have to deal with probate. So the next logical step is to evaluate how complicated the estate is, and thereby 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-set up Trust in place, on the other hand, a probate attorney may not be necessary at all.
Probate attorneys are qualified to help with the actual Estate Planning process too, although they tend to charge a high fee for the basics like setting up guardianship, creating a Will or writing a Trust. Online companies like Trust & Will make personalized Estate Planning easy, convenient and affordable, all without the involvement (and cost!) of an outside attorney.
Generally speaking, probate lawyers, also called estate or trust lawyers, help executors of the estate (or “administrators," if there is no will) manage the probate process.
A probate attorney usually handles the process of estate administration after a person dies. An estate planning attorney, on the other hand, works with living clients on how their client's estates should be administered. The attorney could do that by helping clients prepare trusts, wills, and other relevant documents.
Probate lawyers typically use one of three methods to charge their clients:
If you decide to retain a lawyer for a probate case, you should consider asking the following questions.
If an individual dies with a will, a probate lawyer may be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, an attorney may review the will to ensure the will wasn't signed or written under duress (or against the best interests of the individual).
When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, if you are married, your surviving spouse receives all of your intestate property under many states' intestate laws.
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 then assist the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.).
The estate is being probated in a state that requires an attorney by law — Florida, Texas, Missouri, and Mississippi.
If you’re managing an estate like these, you don’t need to hire a probate attorney: 1 The estate is simple, with common assets like property (a house), bank accounts, investments, etc 2 The estate is a small estate that is eligible for simplified probate procedures. Click here to find out more about probating a small estate. 3 All the interested parties agree on the basic points — that the will is valid, who the executor will be, or if there is no will, who the administrator will be and how assets should be managed and distributed 4 The estate has enough assets to pay its debts 5 The estate isn’t going to owe estate taxes (either state or federal). Most estates that are large enough to owe federal estate tax would be complex enough to benefit from an attorney, but some states have relatively low estate tax exemptions. 6 Probate isn’t required because all assets are being transferred automatically, through joint ownership, payable on death accounts, or living trusts. Check out our article on which assets go through probate.
Attorney fees for a simple estate are generally between $3,000 and $7,000. While that cost is technically the estate’s responsibility, any money that is spent reduces the amount available for heirs. And some estates may not have enough money to cover attorney fees.
Whether a valid will exists or doesn’t exist, the basic steps of the probate process are the same: Petition the court to become the legal representative (executor or administrator) Notify heirs and creditors of the opening of an estate. Change legal ownership of assets from the deceased to the estate. Pay funeral expenses, taxes, and debts.
Probate isn’t required because all assets are being transferred automatically, through joint ownership, payable on death accounts, or living trusts. Check out our article on which assets go through probate.
Probate is a fancy word for the process of proving the validity of a will. A probate judge reviews the will, appoints the executor, and oversees the payment of debts and distribution of assets in accordance with the terms of the will.
As you can see, the majority of estates don’t require an attorney. While hiring an attorney could provide some peace of mind that the probate process is being handled appropriately, that’s some expensive security. And there are other ways to make sure you’re on the right track.
When a person passes away, they leave behind a number of assets, such as their personal belongings, a home, money, etc. Most people appoint an executor of will to be in charge of disbursing these assets to any other beneficiaries.
Any probate lawyer you work with should have at least several years of experience. If your case is complicated, you should also make sure they have worked in similar circumstances. This way you know they can handle any problems that come up along the way.
If someone dies without a will, all their assets must be dispersed according to intestacy laws. In other words, the state will distribute the assets—regardless of what the person may have wanted. For cases like these, you can hire a probate lawyer to help the administrator of the estate (which is kind of like the executor of will) ...
Handling the proceeds from life insurance. Filling out any necessary documents. If the person who passed away had any debt or bills they failed to pay, a probate lawyer will also advise the executor of will on the best way to handle these issues.
The true answer depends on what you need help with and where the lawyer would be able to assist you. These types of lawyers are specialized to be able to perform a number of tasks involved with the probate process on your behalf.
However, in most cases, it's better to hire a probate lawyer. Since they know the probate laws inside and out, a lawyer will be able to guide you through the steps quickly and efficiently. They'll also be able to take care of troublesome paperwork and ensure you don't make any mistakes that can turn into bigger problems later.
If you read the conventional advice for executors, the first step is usually "hire a lawyer. ". And you may well decide, as you wind up an estate, that you want legal advice from an experience lawyer who's familiar with both state law and how the local probate court works. Not all executors, however, need to turn a probate court proceeding ...
(If you don't know the answers, ask a lawyer—before you agree to hire the lawyer to handle things for you.) The more questions you answer with a "yes," the more likely it is that you can wrap up the estate without a professional at your side.
Ideally, all assets can be transferred to their new owners without probate court. Some common examples of assets that don't need to go through probate are assets are held in joint tenancy, survivorship community property, or tenancy by the entirety. Assets held in a living trust can bypass probate, too. Probate is also unnecessary for assets for which the deceased person named a beneficiary—for example, retirement accounts or life insurance policy proceeds.
Are family members getting along? Will contests are rare, but if a family member is making noises about suing over the estate, talk to a lawyer immediately. Probate lawsuits tear families apart and can drain a lot of money from the estate in the process. A lawyer may be able to help you avoid a court battle.
If, however, your initial investigation reveals that there may not be enough money in the estate to pay debts and taxes , don't pay any bills before you get legal advice. State law gives some creditors priority over others.
In UPC states, most probates are conducted with minimal court supervision. A few other states have simplified their procedures without adopting the UPC.
Probating a will includes distributing property after a decedent, or individual who passed away, under court supervision. Guardianship is when an adult is appointed by the court to care for a minor child or a minor child’s property, such as a trust fund. Emancipation occurs when a minor child is granted certain rights of an adult, such as signing contracts. Conservatorship occurs when an adult is appointed to care for another adult who cannot care for themselves.
Lawyers can provide a wide range of services to their clients. Some lawyers handle many different types of cases. Some lawyers specialize in one or two types, such as family and divorce law.
Criminal cases usually involve a prosecutor, a defendant and a defense attorney. A criminal lawyer is also sometimes called a defense attorney. These lawyers can be hired by the defendant or appointed by the court to represent the defendant.
LegalMatch.com is a fast, free, and confidential online platform to help you find the right lawyer for your case. LegalMatch.com provides attorney-client matching services based on the type of case, type of lawyer needed, and your location.
Even in transactional civil matters, such as drafting a contract, a lawyer can be very helpful. A lawyer can make sure contracts are drafted correctly and avoid problems at a later date. A real estate purchase, business purchase, and/or creation of a trademark or copyright will most likely involve a lawyer.
A lawyer is an individual who is licensed to practice law in a state. Lawyers are also known as attorneys or an attorney at law. Some lawyers are licensed in multiple states. Some lawyers are admitted to practice at the Federal level as well.
It is important in divorce cases for an individual to have a family lawyer representing them to ensure their rights are protected.
A probate attorney is basically an advisor to the beneficiaries of an estate or personal representative on how to handle any final matters of someone who is deceased.
The important thing to understand when it comes to hiring a probate lawyer and how much it will cost you is that there are two separate areas of cost.
The benefits and security that come from taking this route produce a vast amount of benefits for you and your family.
Knowing when and for what reasons to hire an estate planning attorney can be challenging if you have never been informed of the appropriate circumstances in which to do so. Throughout your life, there are many things that can prompt the need to hire an estate planning attorney. Some of these things include:
When looking to hire a probate lawyer, it can be tempting to say yes to the first lawyer and jump right in to start going through the nitty-gritty of all the details immediately . While this may be time-efficient, it may be damaging to the long term results of your case.
There are quite a few methods put in place created to protect your assets from creditors like irrevocable trusts, ownership insurance, asset protection trusts, and limited liability entities. The attorney that you hire will be able to walk you through each and every part of this process and help you pick the plan that will ensure that the wealth of your family stays as secure as it can be.
Some other things that this type of lawyer is able to assist in are in matters that deal with tax issues, retitling of a decedent’s assets and requesting court permissions for a variety of reasons.