After a loved one dies, there are many tasks that must be handled. Between managing your own grief, planning the funeral, and handling their home and belongings, it might feel like too much to do on your own. Especially when faced with probate court. The probate process can be long, arduous, and stressful.
A probate attorney can help you navigate the probate process with ease and take some of the stress off of your plate. This guide can help you decide whether an attorney will be helpful in your situation.
What is a probate attorney?
A probate attorney is a licensed lawyer who can help the family of a deceased person or the beneficiaries of an estate to settle the estate. This type of attorney might also be known as a probate lawyer.
A probate attorney is also able to help set up an estate, creating wills, trusts, or guardianships. The cost will likely depend on the size of the estate and whether the attorney charges a flat or hourly fee.
A probate lawyer generally plays one of two roles. They either represent one of the heirs of the estate or act as a representative of the estate itself.
Probate attorney services
Generally, probate lawyers are hired to settle an estate after the death of a loved one. What “settling the estate” entails will have to do with the deceased’s estate plan.
If your family member has a will, then the estate will need to go through probate court. If they didn’t have a will, then their estate is considered intestate and will also need to go through the probate process.
If your family member set up a trust, then their estate won’t go through probate. Without probate, settling the estate can be a faster and more private process.
A trust helps your family avoid the extra cost, time, and stress of probate. We’ll guide you through the setup.
A probate lawyer can provide many services, including:
- Assisting the executor of the estate
- Identifying all estate assets
- Managing the estate’s bank accounts
- Collecting life insurance policy proceeds
- Paying estate and income taxes that are due
- Determining and paying inheritance taxes
- Ordering property appraisals
- Recommending that you pay debts
- Retitling assets into the names of beneficiaries
- Sending out final distributions to beneficiaries
- Writing and filing all court documents
Differences between a probate attorney and an executor
There’s quite a bit of overlap between what duties a probate attorney and executor perform. Both help settle a person’s estate after they die.
In general, the main difference between the two is that the executor acts as a personal representative and is nominated by the person in their will. An executor can be a family member, friend, or a probate lawyer. The executor’s main duty is to carry out the instructions in the deceased person’s will.
A probate lawyer can be hired to help support an executor manage the many duties expected of them as executor. An attorney can also help in the case of multiple co-executors who don’t agree on how the estate should be settled.
While an executor can be a family member and someone who has not received legal training, a probate attorney is a licensed lawyer who has experience dealing with probate and settling estates.
Qualities to look for in a probate attorney
Before hiring a probate lawyer, it’s important to make sure that their experience is in alignment with your needs and that you get along. You’ll also want to make sure you can afford their rate.
Check the probate attorney’s background
While all probate attorneys are knowledgeable in the probate process, if your estate is especially complicated, you might want someone who is used to working with large or contested estates.
Review court experience
Each court and jurisdiction differs slightly. You’ll want to hire and work with a probate lawyer who is familiar with the laws in the state and county where you’ll be going through probate.
You may also want to work with a local lawyer because they’ll have knowledge of the specific court processes and the court officials, which can streamline the process.
Align budget and expectations
Before you sign the contract to hire a probate lawyer, you want to review their fee structure and make sure the cost of their services falls within your budget. While the estate likely will pay for all of the legal fees, it does affect the bottom line of the estate.
An experienced but reasonably priced lawyer means there will be more inheritance left over to distribute to the heirs.
Assess timeline
Ask a potential attorney about the probate timeline. While most factors in probate resolution have to do with the courts and disagreement between co-executors, a lawyer with the bandwidth to focus on your case and who isn’t working on dozens of cases at the same time may be able to speed up the process.
Personality compatibility
Cost and experience are extremely important when choosing the right attorney for your situation.
But, you also want to choose someone who you like working with. You want a probate lawyer who will treat you and your family with respect. Some offer a free consultation, which can help you assess if you get along or not.
When do you need a probate attorney?
While it’s not necessary to hire a probate attorney, there may be instances where hiring a lawyer could make the process easier for you and your family during this time of grief.
A few reasons you might consider hiring a probate lawyer include:
- If the estate is large or contains valuable assets
- If the estate is complicated or includes multiple wills or trusts
- If you live in a state with complicated or strict estate planning laws
- If your loved one died without a will and you want support navigating the probate process
- If you expect conflict between beneficiaries
- If you foresee complications, such as there not being enough funds in the estate to pay off debts
While most places don’t require you to work with an attorney while going through probate, some counties do require it.
How much does a probate lawyer cost?
When considering whether or not to hire an attorney to help settle an estate, it’s important to understand that the attorney fees will come out of the estate. The estate will pay the attorney, you don’t have to. It does lessen the value of the estate, which may lower your inheritance, but that may be worth it so you don’t deal with as much stress.
Before you hire a probate lawyer, it’s important to understand a probate attorney's fees.
Some probate lawyers charge:
- A flat fee
- An hourly rate
- A percentage of the estate value
If an estate planning attorney charges a flat fee, you will pay them that one price, no matter how long the probate process takes.
An hourly rate is charged based on the number of hours it takes for an attorney to settle the estate.
In some states, an estate planning attorney works by charging a percentage of the estate value. This fee structure is especially common for higher-value estates. For example, they will take 5% of the total value of the estate once probate is complete.
States where this is legal include:
- Arkansas
- California
- Florida
- Iowa
- Missouri
- Montana
- Texas
- Wyoming
The total cost of hiring a probate attorney will depend upon the size of your estate, how complicated the will is, how long it takes to get through probate, and how experienced your lawyer is.
On top of lawyer fees, the estate will also have to pay taxes, pay off debts, and pay court filing fees.
How to find the right probate attorney
If you plan to work with a lawyer during probate, it’s important to make sure you find the right person to work with. Here are a few suggestions on how to find a reputable attorney.
Ask another lawyer
If you know a lawyer, ask them to recommend a probate lawyer to you. It’s likely that they have someone in their network who specializes in estate law and comes highly recommended.
Submit a request online
Probate law is a large industry. You can do some research online to find nearby probate lawyers who can help you. Read online reviews, look at their websites, and reach out.
After some research, you can also ask friends and family if they’ve heard of or worked with the attorney you think is right for your situation.
Use LegalZoom
If you’re not sure where to start, you can use the LegalZoom network. LegalZoom maintains a list of probate specialists so you can find one that fits your unique situation. On the website, you’ll also find transparent fee structures so that you are sure to know the cost going in.
Settling a loved one's estate and going through probate can be a fraught and stressful process.
Legal proceedings are complicated, and emotions can be high between loved ones. Bringing in a probate lawyer can help make the process less stressful by having someone guide you through the legal process of probate court.
FAQs
Can a probate lawyer help if there is no will?
If a person dies without a will or other estate planning documents, the estate is considered intestate. In that instance, the estate will be distributed to family members based on state inheritance laws.
Even if there were verbal or stated wishes from the deceased person, without a will, estates must be distributed based on state law.
While you can hire and work with a probate attorney in this instance, the estate will still need to be distributed in accordance with the state laws.
What kind of questions should I ask my attorney?
Before hiring an estate attorney, it is beneficial to ask them some questions and understand their background. It can also help you to understand the cost of their services so that there are no unexpected fees.
Questions it would benefit you to ask include:
- How long have you been practicing estate law?
- Do you practice in any other areas of the law?
- How long have you been an attorney?
- Have long have you worked in this jurisdiction?
- How do you charge clients and what’s the total cost I should expect?
- Have you handled similar cases in the past?
- How long do you think our state's probate process will take?
How long does the probate court process usually take?
The probate process takes an indeterminate amount of time but can range from between a few months to a couple of years. How long it takes depends upon the size, complication, and value of your estate and your location. Some probate courts take longer than others, depending on the state. The more complicated your estate, the longer probate will take.
Another factor that might cause probate to go on longer is disagreement between heirs. If the estate has multiple executors and those executors disagree on how to distribute the estate, it might cause the process to take longer.
Is there any way to get money from estate assets before the probate process is over?
Yes. If you need your inheritance sooner than you think probate will resolve, you can look into either a probate loan or a probate advance.
In both a probate advance and probate loan, a lender can loan you a portion of your inheritance within a few weeks. Upon the resolution of probate, you pay back the lender plus a fee.
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