A probate lawyer is a state-licensed attorney who advises personal representatives, also called executors, and the beneficiaries of an estate on how to settle the final affairs of a deceased person.
What a Probate Lawyer Does
All the steps involved in probating an estate depend on the probate laws where the decedent lived at the time of death, as well as any other states where the decedent might have owned property.
The steps required for settling an estate will differ based on whether the decedent died testate—with a valid last will and testament—or intestate, without leaving a valid will or other estate plan. A probate lawyer will be well-versed in both situations.
A probate lawyer can also be hired to advise beneficiaries of an estate on legal and other matters presented by the personal representative during the course of the probate process. This can become necessary when the beneficiary doesn't get along with or trust the personal representative.
Some probate lawyers specialize in separate lawsuits related to the decedent's estate. This might happen when a beneficiary challenges the validity of the decedent's last will and testament through a will contest. These types of attorneys are known as estate litigators, probate litigators, or estate and trust litigators.
How a Probate Lawyer Assists a Personal Representative
The probate lawyer advises and assists with four areas of responsibility when representing the personal representative of an estate:
An attorney might assist in helping the executor locate and secure both probate assets and non-probate assets, and determining date-of-death values by appraisal, if necessary.
The executor will be required to collect any life insurance proceeds if the estate is named as beneficiary, and rolling over and making appropriate elections with regard to retirement plans, including IRAs and 401(k)s. The attorney will assist with all this.
Eventually, the decedent's real estate and other assets will have to be retitled in the names of the estate beneficiaries if they're not being sold. The lawyer typically takes care of this paperwork as well, then the executor can distribute what's left of the decedent's assets to the beneficiaries after bills and taxes are paid.
A probate lawyer will advise on the payment of the decedent's final bills and outstanding debts, and will prepare and file all related documents required by the court.
The executor must keep track of the estate's checking account, and the attorney might oversee this as well, in addition to determining if any estate taxes or inheritance taxes will be due at the federal or state levels. If so, the attorney will figure out where the cash will come from to pay these taxes, as well as any income taxes due from the decedent's last year of life.
The attorney will settle any disputes that arise between the personal representative and the estate's beneficiaries, and assist with the sale of estate property.
It's the attorney's responsibility to request court permission for various actions as required by state laws, including the sale of property. Court approval can help reassure unhappy beneficiaries.
Do You Need a Lawyer?
Much of what's involved in settling an estate requires common sense but not necessarily a law degree. Most executors can handle quite a few of these details just fine on their own.
But more complicated estates can prove to be minefields of potential problems that a professional can best deal with. The assistance of an attorney can prove invaluable when beneficiaries don't get along, when the estate includes complex assets like business interests, or when the decedent didn't leave sufficient assets to pay all debts.
Retaining a lawyer to handle the entire probate process can get quite pricey, but it's not always necessary. Some attorneys will bill estates by the hour for services rendered only when the executor runs into a situation that requires professional help.