Previously, we wrote about probate and the importance of having a probate attorney. A good probate lawyer can be a big help with the sometimes overwhelming and confounding probate process, working to ensure that beneficiaries and court officials get the best possible outcome. Yet the exact duties of a probate attorney can vary greatly depending on whether or not the deceased has left behind a will.
Whereas the last blog was a more general overview of probate lawyers and their role, here we will go into the specifics of what one actually does.
What is a Probate Lawyer?
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.1 The main purpose of probate is to determine whether or not the will left behind is valid, after which the court ensures the beneficiaries listed receive the proper titles and assets from their estate.2 Their services can include everything from finding and inventorying assets of the estate, to understanding and paying all the debts the estate may have.
What Does a Probate Lawyer Do?
The main goal of a probate lawyer is to help settle the estate of the recently deceased. If an individual died with a Will, a probate lawyer can be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, they can evaluate the will to determine if any mistakes have been made. They can also ensure that the will wasn’t signed or written under duress or against the best interests of the individual. This is especially important with older people, who may be vulnerable to outside influence from individuals who want a cut of the estate.
Along with evaluating the will itself, a probate attorney will 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. Some of the more specific tasks they can help with include:3 4
- Finding and securing all of the decedent’s assets
- Retitling assets in beneficiaries’ names
- Ordering or conducting appraisals for property
- Determining and paying inheritance taxes
- Collecting and managing life insurance proceeds
- Advising on how to pay the decedent’s bills and settle any debt
- Preparing/filing documents as required by a probate court
- Opening and managing the estate’s checking account
- Determining what estate or incomes taxes are owed
- Preparing and filing all court documents
- Making final distributions after paying all bills and taxes
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. Additionally, a trust doesn’t go through probate, though a probate lawyer could still be hired to help the Trustee administer the trust.
What If There’s No Will?
If someone dies without having written and signed a will, they 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. In these situations, a probate lawyer may be hired to assist the administrator of the estate in distributing the assets according to state law. While a probate lawyer might help with some of the tasks listed, they are bound by your state’s intestacy laws and cannot act against them, regardless of family members’ needs or the wishes of the deceased.
Now You Know!
While a probate lawyer isn’t always necessary when settling an estate, it is always good to have another resource available to you. They can make the occasionally overwhelming probate experience a lot more manageable, but only if you if a will is involved. All the more reason to make sure that your estate plan is fully worked out ahead of time so that when your time comes, your family and loved ones can have some much-needed assistance.
1. Hicks, P. (n.d.). What is a probate attorney & do I need one. Trust & Will. https://trustandwill.com/learn/probate-attorney.
2. Hicks, P. (2021, May 25). Probate – What is probate & how to avoid it. Trust & Will. https://trustandwill.com/learn/what-is-probate.
3. FindLaw, & Teka, M. (2020, May 8). What is a probate lawyer? Findlaw. https://www.findlaw.com/estate/probate/what-is-a-probate-lawyer.html.
4. Hicks, P. (n.d.).