As we discussed in a previous blog post, probate can be a long and costly process, grinding the estate process to a halt as the court works out who should receive the deceased’s various assets. With this in mind, it is recommended that you have a will and other estate planning documents in order to avoid this outcome. But along with having your will in place, you should also have someone tapped to distribute your assets as well.
A good probate lawyer can help guide people through the probate process, working with beneficiaries and court officials to get the best possible outcome. But what exactly does a probate lawyer do and do you always need one? Read on!
What is Probate?
Probate is the legal procedure that your estate goes through after you die. During this legal proceeding, the court grants the estate representative the authority to legally represent the estate and act on its behalf.
The probate process includes:1
- proving in court that a deceased person’s will is valid
- identifying and inventorying the deceased person’s property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will/state law directs
The main purpose of probate is to determine whether or not the will left behind is valid and should be accepted as the true last testament of the deceased. From there, the goal is to ensure that the beneficiaries listed receive the proper titles and assets from their estate.2 If the deceased does not have a will in place, the probate court will have to determine how to distribute their assets based on state laws.
What Does a Probate Lawyer Do?
As the name suggests, a probate lawyer is a legal professional that helps Executors of the Estate (or “administrators,” if there is no will) manage the probate process as they work to settle the estate.3 They specialize in estate administration and all aspects of probate. Their job includes:4
- 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 any debt
- Preparing/filing documents as required by a probate court
- Managing the estate’s checkbook
- Determining whether any estate taxes are owed
They will also file and complete any paperwork required by the court, arrange for service to all of the necessary parties, and advise you on the ins and outs of probate. However, if there is no will, then a probate lawyer may be hired to assist the administrator of the estate. They may assist with some of the tasks listed above, but they are ultimately bound by your state’s intestacy laws.
Also, it is worth noting that a probate lawyer is not the same thing as an estate planning lawyer. While they both specialize in the same general area of law, they serve slightly different functions. A probate attorney usually handles the process of estate administration after a person dies, while an estate planning attorney works with living clients on how their client’s estates should be administered.5
When Do You Need a Probate Lawyer?
Generally speaking, it is always a good idea to have a lawyer to help you through the probate process, but you don’t always need to hire one. It all comes down to how complicated the probate process is expected to be. Before seeking out a probate lawyer, ask yourself the following questions:6 7
- 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 estate small and manageable?
- Are the assets and beneficiary designations simple?
- 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?
If you can answer yes to most or all of these questions, then you probably don’t need to hire a probate lawyer. Yet if you live in a state with a more complex probate process, have a somewhat dysfunctional family, or will likely have to contend with significant debts, then a probate lawyer is highly recommended. Also, if the deceased only left behind a will, probate is unavoidable, so you will definitely need an attorney.
Preparing For the Probate Process
Whether you’re working on your own estate plan or are handling someone else’s, it is probably a good idea to speak to an experienced probate attorney to get help throughout the process. While you don’t need one for every situation, they can be a great help if your estate is on the more complex side. They have exactly the skills and expertise needed to make the probate process as short and simple as possible.
1. Nolo. (2021, April 1). What is probate? www.nolo.com. https://www.nolo.com/legal-encyclopedia/probate-faq.html.
2. Hicks, P. (2021, May 25). Probate – What is probate & how to avoid it. Trust & Will. https://trustandwill.com/learn/what-is-probate.
3. Hicks, P. (n.d.). What is a probate attorney & do I need one. Trust & Will. Retrieved December 2, 2021, from https://trustandwill.com/learn/probate-attorney.
4. FindLaw, & Teka, M. (2020, May 8). What is a probate lawyer? Findlaw. https://www.findlaw.com/estate/probate/what-is-a-probate-lawyer.html.
5. FindLaw, & Teka, M.
6. FindLaw, & Teka, M.
7. Hicks, P. (n.d.).