What is a probate lawyer and do I need one?

If you’ve never had to navigate the probate process before, you’re likely going to find yourself overwhelmed and bewildered at some point along the way. Red tape doesn’t end at death: In fact, it often gets worse.

The situation gets more stressful if you’ve been named your loved one’s estate executor while simultaneously dealing with the grief of losing someone close to you.

You might find yourself unable to navigate the legal and financial requirements of settling an estate if you’re still right in the middle of mourning. And although many estates can be settled by a layperson, there are some situations where you may find yourself searching for professional help. That’s where a probate lawyer comes in.

What exactly is a probate lawyer?

A probate lawyer is a licensed attorney who is usually in charge of handling all legal aspects of probate, including applying for a grant of probate, and typically either represents a beneficiary of the estate, the estate itself, or the estate executor.

If the latter is the case, then the probate lawyer may help the executor complete their tasks or even take over entirely with responsibilities such as contacting beneficiaries, creating an inventory of assets, and overseeing the retitling of assets in addition to taking care of all necessary legal paperwork.

Whatever the case may be, the role of the probate lawyer is always to act in their client’s best interest and ensure that the estate is distributed according to the will or the requirements of the state or province (in cases where there is no will). This is also known as an attorney’s fiduciary duty.

What does a probate lawyer do?

A probate lawyer can have many duties. Oftentimes these are previously agreed upon with the client and focus on estate settlement duties and probate procedures.

Sometimes the probate lawyer may assist the estate executor, represent a beneficiary who may consider entering into litigation, or even act as estate executor themselves. However, the role of a probate lawyer will depend slightly on whether the deceased left a will, or whether they died without one—also known as dying intestate.

When there is a will

When the deceased left behind a will and an estate attorney is hired by the deceased’s family, then the first order of business tends to be to apply for a grant of probate at the court in the county where the deceased resided. They’ll have to submit an application, the will, and the death certificate of the deceased. Once the will is validated by the court and the grant for probate is accepted, the duties of a probate lawyer may include the following:

• Creating an inventory of the estate’s assets, having them appraised, and sending the inventory to the probate court;
• Communicating with the estate’s creditors and ensuring that the estate’s debts are paid;
• Overseeing the transfer of titles for assets such as real estate or vehicles;
• Assisting the estate executor in contacting insurances and pension providers, or doing this themselves;
• Opening an estate chequing account and overseeing all transactions in the account;
• Preparing and filing all relevant paperwork for government agencies and legal and financial matters;
• Preparing the deceased’s final tax return, paying any outstanding tax, and filing an estate tax return if necessary;
• Oversee the distribution of the inheritance in accordance with the will, including any assets held in a living trust during the deceased’s lifetime;
• Petition the court to close the estate.

When there is no will

When there is no will, the deceased is said to have died intestate. This means that their assets will be distributed according to the intestacy succession laws of the state or province where the deceased resided. Many of the responsibilities and services that a probate lawyer offers, in this case, remain similar to the ones outlined above, with some key differences:

• Since there is no will, a family member or a probate attorney usually submits the death certificate and an application for probate. The court then nominates an estate administrator, who can be assisted by a probate attorney.
• Once all administrative duties regarding probate (gathering assets, paying debts and taxes, etc) have been completed, what remains of the estate is distributed to heirs according to very specific inheritance hierarchies. The deceased’s wishes play no part in this matter. The probate attorney can oversee this process to ensure the estate is distributed according to succession laws.

How much do probate lawyers charge?

The amount that a probate lawyer will charge is based on a variety of factors, including the complexity and size of the estate, whether the lawyer is from a big firm or a smaller, more specialized company, and where probate is taking place.

Probate attorneys usually either charge an hourly rate or a fixed, flat rate for the entire probate process. If they’re charging an hourly rate, you can expect anything from $150 to $400 an hour. An attorney from a larger city may charge on the higher end of that spectrum, while you can expect lower prices from small-town or rural attorneys.

Some states also allow a lawyer to charge a percentage of the estate. In California, for example, lawyers are allowed to bill according to the following structure:

• 4% on the first $100,000 of the estate;

• 3% of the next $100,000;

• 2% of the next $800,000.

Whether you choose an hourly rate or a flat fee depends on what works better for you and your loved ones. With hourly rates, you know you’re only paying for the time you really need. With a flat fee, you don’t have to worry about racking up a bill every time you email your lawyer a question or require additional help.

When do you need a probate attorney?

The general advice is that it’s a good idea to hire a probate professional if the estate is particularly large or complex, such as owning various assets in different countries or facing a difficult tax situation. In these cases, it can be beneficial to hire the services of an experienced probate expert, since you’re dealing with large, valuable assets and financial and legal situations that may be too complex for a layperson.

This is also true for cases where the probate proceedings are taking place in a state or province where the executor doesn’t reside, and is therefore unfamiliar with the laws and will face difficulties in completing their duties alone.

Another time when it may be a good idea to hire a probate lawyer is when there’s litigation against the estate. If the estate is being sued by creditors, or if one or more beneficiaries are contesting the will, then it may be a good idea to have an experienced attorney as support.

Keep in mind that attorneys are expensive, and that attorney fees can quickly add up and take a significant chunk out of the heirs’ inheritance. If you think you’ll be able to handle a smaller estate by yourself, then you should give it a try before hiring an expensive professional. After all, there are other ways of getting the help you need without paying an arm and a leg.

Could you do probate yourself?

Many estates are quite simple and probate can be handled by the executor. This is particularly the case if the deceased had a good estate plan in place that ensured the estate’s assets were reduced to a minimum by creating joint ownerships, living trusts, or gifting assets during the deceased’s lifetime. This would ensure that the value of the estate remained small and that the number of assets that needed to go through probate were kept at a minimum, thereby allowing the executor to submit a small estate affidavit.

However, being able to do probate yourself requires a lot of planning ahead, particularly on the testator’s side. In the ideal case, the testator and the executor worked together to ensure that most assets in the estate did not need to go through probate, and that the estate’s value would be small enough to qualify for a small estate affidavit.

Even if you think the estate is small and simple enough to take on probate by yourself, you should still consider that this process can be very challenging and draining. This is especially true if you and your loved ones are currently in the midst of grieving and simultaneously trying to juggle legal and financial matters. The good news is that you don’t have to do it alone, and you don’t necessarily have to hire a probate lawyer if you feel like your case doesn’t require it.

At ClearEstate, we’re here to help estate executors and beneficiaries navigate probate, from creating an inventory of assets to filling out paperwork, at a fraction of the price lawyers charge. If you’re curious, you can schedule a free consultation to find out how we can help.

Frequently asked questions:

How long does it take to settle an estate?

The answer to this depends on a lot of factors, including the size and complexity of the estate, how many assets require going through probate, where probate is being carried out, and whether anyone contests the will.

Courts in less populated counties may be able to wrap up probate proceedings more quickly, since they may have less on their docket, while courts in larger urban areas may have more on their plate. Legal disputes, many assets, and assets in different jurisdictions will also prolong the length of probate.

However, if everything goes well, the average length of time for settling an estate is between 6 months to a year.

What’s the difference between a probate and an estate planning lawyer?

You can think of it like this: An estate planning lawyer takes care of everything that happens before death, and a probate lawyer takes care of everything that happens after.

An estate planning lawyer helps a testator devise strategies to ensure that the executor and any beneficiaries won’t lose part of their inheritance to taxes and fees. They may help set up a living trust, devise strategies for gifting assets to beneficiaries, advise on creating joint ownership arrangements, and help the testator draft a will.

If you and your loved ones are curious about starting an estate plan but don’t know where to begin and aren’t sure whether a lawyer is right for you just yet, then ClearEstate can help. We also specialize in estate planning and have an experienced team that can help with anything from drafting a will to setting up trusts. Reach out today to find out more.