What is a Probate Lawyer?
Probate is the legal process that an individual's will, assets, and belongings go through after the individual has died. Probate lawyers, also known as estate attorneys or trust lawyers, are the specialized legal professionals who may assist with this process. These lawyers can assist with any part of the probate process.
Depending on the state of the will and the individual's assets, this assistance may include:
- Proving the validity of the will
- Inventorying the deceased person's property
- Appraising the deceased individual's property
- Paying off outstanding debts and taxes
- Distributing the deceased person's property
Image via Unsplash by Leon Seibert
Probate isn't always necessary. If the individual's assets were under a certain amount, as determined by the state, they can sometimes be distributed to heirs without probate. Accounts with listed beneficiaries, such as pensions, 401(k) plans, insurance policies, trusts, and individual retirement accounts (IRAs) transfer directly to the named beneficiary rather than going through probate.
When is a Probate Lawyer Necessary?
A probate lawyer isn't necessary in every case. Often, an individual can handle the probate process themselves without the assistance of an attorney. However, a probate lawyer is a valuable asset in more complex cases, or in any case where the appointed executor of the estate is uncomfortable handling the probate process independently.
The executor is responsible for:
- Completing court forms
- Notifying the heirs listed in the will or determined by the court
- Distributing assets and changing their legal ownership
- Paying the deceased individual's taxes and debts
- Paying for the funeral expenses
- Documenting all activities involved in closing the estate and reporting these to the court
If you're uncomfortable with or unsure of any of these steps, a probate lawyer can help. You should also consider securing a probate lawyer if:
- The instructions in the will are unclear
- There is no will, and the deceased has significant assets, or there is a dispute over the distribution of the assets
- You're unsure of the validity of the will
- You don't understand your state's succession laws
- The deceased had complicated assets such as royalties, mineral rights, or ownership of a business
- The estate has more debts than assets, making it insolvent
Here is an article with more information on the probate process.
Who Secures a Probate Lawyer?
When an individual passes, an executor or administrator is appointed to handle the estate and distribute assets. The deceased individual's will names the executor of the estate. If there is no will, then the state names an administrator. Each state has guidelines specifying who will serve as the administrator. In many cases, this defaults to the surviving spouse, children, parents, or siblings, in that order.
In some cases, the court may overrule the will and name a different executor. State laws may prohibit an individual from serving as the executor of the will if they:
- Were in a business relationship with the deceased
- Are under the age of 18
- Have been convicted of a serious crime
- Live out of state
The executor or administrator has the option to decline this responsibility, in which case the court will name someone else. Once identified, the executor or administrator is responsible for securing a probate lawyer, when needed, to assist with the probate process. The probate lawyer's fees are typically paid using estate assets. These fees come out of the assets before they're distributed, so the executor of the estate will not have the lawyer's fees removed exclusively from their portion of the inheritance.
Responsibilities of a Probate Lawyer
Probate lawyers can offer many types of assistance. You may want a probate lawyer who will take over all aspects of probate or one who will simply make themselves available to answer questions while you take a hands-on approach to the paperwork and distribution of assets. Discuss your needs before hiring a probate lawyer and come to an agreement on the level of involvement that you want.
How a Probate Lawyer Assists With a Will
If the deceased individual left a will, the probate lawyer will typically begin by proving the will to ensure it is valid. The lawyer will review the document to make sure it was properly drafted. The court may determine that a will is invalid if:
- It was not signed by the testator (the individual leaving the will) in accordance with state laws, which set forth requirements for witnesses
- The testator suffered from diminished mental capacity when drafting the will
- The testator was under duress (being threatened or pressured to succumb to another's will)
- It was fraudulently executed
If a will is contested, you may want to find a probate lawyer who specializes in lawsuits related to a deceased person's estate. These are known as probate litigators or estate litigators.
How a Probate Lawyer Assists With the Estate
The presence of a will typically makes it easier to handle the estate. In the absence of a will, the distribution of the estate is determined by state laws. In either case, a probate lawyer can help determine how the deceased individual's assets must be handled. This lawyer can also assist with the paperwork and distribution as needed.
Some of the duties that a probate lawyer may take on include:
- Distributing necessary notice of the probate to heirs, beneficiaries, and creditors
- Communicating with beneficiaries, settling disputes, and answering their questions
- Obtaining the court's permission for certain actions, such as the sale of property
- Assisting with the sale of the deceased's property
- Having real estate and other assets retitled
- Getting appraisals of the deceased's property
- Locating and securing all assets such as retirement plans
- Calculating and paying taxes owed
- Evaluating the deceased's outstanding debts and final bills
- Overseeing the estate's checking account
- Collecting proceeds from life insurance policies
- Reviewing important deadlines such as those for creditor claims and court hearings
- Completing and filing documents required by the probate court
A probate lawyer is especially useful when you're dealing with the legal complexities of certain situations like the sale of the deceased's property. You can sell estate property during probate, but there are special considerations to take into account. Here is an article on how a probate attorney can help when selling property.
The Benefits of Working With a Probate Lawyer
Probate can be a complex process, particularly if the deceased had a large estate. When probate is completed, the executor or administrator must file a final account of all their activities regarding the estate. This includes a detailed account of all assets received and bills paid. It's crucial to have an accurate account of gains and losses on sales as well as the final distribution of any remaining funds.
A probate lawyer provides the executor or administrator with added protection regarding these documents. If a lawyer is not consulted, the executor or administrator is solely responsible for any errors in these filings. A good probate lawyer will ensure that all accounting is handled properly, sometimes consulting with an outside accounting firm for more complicated cases.
A probate lawyer also provides impartiality when dealing with the estate. The loss of a relative or loved one can be an emotional time for those who were close to the individual. A probate lawyer can step back from the heightened feelings that others are dealing with and provide a balanced and unbiased judgment in any disputes that may arise.
Working with a knowledgeable lawyer can make it easier to handle dispute assessment and other sensitive issues during this challenging time.