Do I Need a Lawyer for Probate?
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.
Questions You Should Ask Before Hiring a Lawyer
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. You should, therefore, ask the following questions to see what the best option is for you:
- Are the estate assets enough to pay any outstanding debts?
- Are there disputes between named beneficiaries of the estate?
- Can the estate be distributed without involving the probate court?
- Is the estate small or large?
- 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, then it is recommended you get the help of a lawyer. This can vary from a one-time consultation (to better understand the legal process) to full representation.
What Does a Probate Attorney Do?
A probate attorney mainly gives legal advice regarding the estate administration. The attorney's role will differ based on whether the deceased had a will or if they died intestate (without a will).
Some of the things an attorney can help you with include:
- 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 the attorney's experience, whether they specialize in probate cases, and where they are located. How complicated the case is will also factor into how much an attorney will charge you.
A probate attorney may charge you by the hour, on a flat-fee basis, or they may ask for a percentage of the estate. Make sure to settle this with your attorney before you hire them.
The Probate Process
Whether or not an estate has to go through probate depends on the laws of the state. Some states, for instance, have simplified procedures to transfer property if the estate doesn't have enough money or if the estate's worth is under a certain amount.
The probate process begins once someone passes away. The process will vary if the person died with a will or without one. In either case, the probate court will be in charge of supervising how the property is distributed.
The actual process varies largely by state. For a general outline of the process, please see our article on the probate process and timeline.
Testate vs. Intestate Probate
If a person wrote a will, it means the person died testate. In these cases, the property will be transferred according to the instructions in the will. However, if the person died without a will (intestate), the state's intestate succession laws will be applied.
If there is a will, the person who passed away will usually have named a specific person as an 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:
- How big the estate is
- The number of beneficiaries
- If there are issues with the will
- If there are taxes and debts that need to be paid
Depending on how complicated the case is, the probate process may take anywhere from a few years to decades.
Have an Attorney Assist You With the Probate Process
Navigating through probate is not an easy task. It requires you to know your state's specific probate rules and procedures. If you are an executor or are somehow involved in a probate process, speak to an experienced attorney near you to get proper legal advice.