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What Is a Probate Lawyer?

As the old saying goes, you can't take it with you when you die. But a probate lawyer can help surviving family members settle your debts and distribute your assets after you're gone, with or without a will. So what is a probate lawyer?

What Is a Probate Lawyer?

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.

They also may help with estate planning, such as the drafting of wills or living trusts, give advice on powers of attorney, or even serve as an executor or administrator.

This article focuses on the type of work typically performed by a probate lawyer. See FindLaw's Planning an EstateProbate, and Using an Estate Planning Attorney sections for additional resources.

What Does a Probate Lawyer Do?

What a probate lawyer does will likely depend on whether or not the decedent has drafted a will prior to their death.

When There Is a Will

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). Elderly people with dementia, for example, may be vulnerable to undue influence by individuals who want a cut of the estate.

There are numerous reasons that wills may be challenged, although most wills go through probate without a problem.

When There Is No Will

If you die without having written and signed a will, you are said to have died “intestate." 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. However, intestacy laws vary widely from state to state.

In these situations, a probate lawyer may be hired to assist the administrator of the estate (similar to the executor), and the assets will be distributed according to state law. A probate lawyer may help with some of the tasks listed above but is bound by state intestacy laws, regardless of the decedent's wishes or the family members' needs.

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 then assist the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.).

What Is the Role of a Probate Lawyer?

Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor/administrator:

  • Collecting and managing life insurance proceeds
  • Getting the decedent's property appraised
  • Finding and securing all of the decedent's assets
  • Advising on how to pay the decedent's bills and settle debt
  • Preparing/filing documents as required by a probate court
  • Managing the estate's checkbook
  • Determining whether any estate taxes are owed

When Do You Need a Probate Lawyer?

Although it's a good idea to have a lawyer help you through the probate process, it's not always necessary to hire one. Whether you need a lawyer or not will depend on how big the estate is.

So, before you hire an attorney, ask yourself the following:

  • Does your state have a relatively easy probate process?
  • Do the family members that are in the will get along with each other?
  • Is the money in the estate sufficient to pay debts?
  • What type of property is in the estate?
  • Can the estate be distributed without probate?

How Much Do Probate Lawyers Typically Charge?

Probate lawyers typically use one of three methods to charge their clients:

  • Fees based on hourly services
  • Flat fees
  • Payments based on a percentage of the estate's value

The exact amount of fees will depend on the attorney's experience and other factors like where the attorney practices.

What's the Difference Between a Probate and Estate Planning Lawyer?

Although both probate and estate planning attorneys generally practice in the same area of law, they have some distinct differences.

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.

What Questions Should You Ask a Probate Lawyer?

If you decide to retain a lawyer for a probate case, you should consider asking the following questions.

  • Do they specialize in probate law? (Ask if they have handled a case like yours before.)
  • How does the lawyer intend to charge you?
  • How does the lawyer intend to handle your case?
  • What is the process involved in your specific case?
  • Will the lawyer personally handle your case?

Speak to a Probate Attorney to Get Help With the Probate Process

If you are handling the distribution of an estate of someone who died without a will or if you were named an executor in an estate, it is probably a good idea to speak to an experienced probate attorney to get help throughout the process.

Next Steps

Contact a qualified estate planning attorney to help with the probate process.

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