What is a Probate Lawyer/Attorney and Why Do I Need One?

Last update on: Feb 05 2021

By Katie Kao

A probate lawyer, or probate attorney, guides the executors of an estate through the probate process.

Usually, when a probate lawyer is hired, he or she handles all the paperwork and proceedings in court. A probate lawyer also can advise the executor on actions the executor must take and guide the executor through those actions. Probate lawyers charge for their services, and the charges might be hourly fees, flat fees, or a percentage of the estate value.

Probate is the legal process that ensures your debts are paid and legal title of your assets is transferred to the appropriate heirs and beneficiaries. If you have a will, the probate process determines whether the will is authentic and valid.

The complexity of probate varies, based on the composition of the estate and the state or local probate laws. Many estates can be probated without the help of an attorney, while an attorney is helpful for other estates.

What are the duties of the probate lawyer?

When there is a last will and testament, a probate lawyer might be hired to assist the executor of the estate with legal questions or complex tasks. The probate lawyer can be assigned any tasks related to probating the estate, including:

Handling a will contest if one arises;
Collecting and managing the testator’s, also known as the deceased’s, life insurance proceeds;
Having the estate appraised;
Finding and securing all of the testator’s assets;
Advising the executor on how to pay the testator’s bills and settle debts;
Preparing and filing documents required by the probate court;
Managing the estate’s accounts and accounting records;
Determining the amount of any estate taxes owed;
Filing the estate tax return and income tax returns: and
Making a final disbursement of assets to beneficiaries after all bills, debts, and taxes are paid.

If there was no last will and testament, the deceased is said to have died intestate, and the probate process is handled according to the intestacy laws and the probate court. Many of the same steps required in the probate of an estate with a will are taken. But the deceased’s estate will be distributed as directed in the state’s intestacy laws as interpreted by the probate court.

Why Use a Probate Lawyer?

Although a probate lawyer is not required in most states, the counsel can greatly help speed up the probate process, depending on the size of the estate. Bigger and more complex estates benefit from hiring a probate lawyer more than a relatively small estate. A small estate often has a simple probate process, while bigger estates require more work in finding beneficiaries, securing assets, contacting creditors, paying taxes and making the final distribution. Therefore, these are the main reasons that executors will choose to hire a probate lawyer for the probate process.

Family members and beneficiaries do not get along and there is a risk that the last will and testament may be contested.
There potentially is more than one will.
The executor is unfamiliar with the probate process and wants help to avoid mistakes.
The deceased’s estate is large and complex.
The probate process in the state or locality is long or complex.
Accounting for the estate is complicated.
The creditors of the estate are hard to reach or the executor is unsure of debts owed by the estate.