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What is a probate lawyer?

When an estate is in probate, you should consider hiring a probate lawyer. If you’re wondering “what is a probate lawyer,” we explain it all here.

evident Editorial Team
March 22, 2022
Probate lawyer meeting with client.

Many people hire attorneys each year as they navigate the probate process, which is the legal process of transferring the assets and property of the deceased to their heirs. It can help to have an experienced probate lawyer to guide you through a complicated and often difficult time, particularly if you find yourself as the executor or administrator of an estate.

If you are dealing with a probate case, here’s everything you need to know about probate attorneys, from how they can help you navigate the process to how much do probate lawyers cost.

Key Takeaways

What is a probate attorney?

Probate attorneys provide legal guidance by assisting the executor in various stages of the probate process. Typically, they help with:

  • Identifying & gathering all assets belonging to the estate
  • Getting appraisals for real estate property
  • Advising on the payment of debt and taxes owed by the estate
  • Filing income tax and estate tax returns
  • Preparing and filing necessary documents in probate court

What is the difference between an estate lawyer and a probate lawyer?

Estate lawyers, or estate planning lawyers, help clients create an estate plan to get their affairs in order before they die. This would include drafting a will, powers of attorney, perhaps a trust, and any other necessary documents 

Probate lawyers are typically hired after a person dies to help with administering their estate. Probate attorneys, sometimes called executors or the estate, can help families of the deceased through the probate process to ensure that the decedent’s wishes are carried out.

What does a probate lawyer do?

The type of work a probate lawyer does will depend on whether there is a will.

When there is a will

When there is a will present, a probate lawyer may still be helpful to advise executors and beneficiaries on legal issues throughout the probate process. One of their first tasks would be to review the will and ensure it is valid. For instance, they might ensure that it was not signed against the best interests of the deceased. A probate attorney would also assist in executing the terms listed in the will throughout the probate process.

When there is no will

If no will is present, a probate attorney can help the administrator distribute the estate’s assets according to state laws. When there is no will, state-specific laws govern which family members receive portions of the estate. 

The probate attorney can also help with other tasks such as filing any necessary court documents or paying taxes the estate owes.

Why do you need a probate lawyer?

Here are three of the main situations when it makes sense to speak with a probate attorney:

Situations to consider hiring a probate lawyer include larger estates, complicated assets, and disputes over the estate.

Larger estates -- Typically, settling larger estates will lead to a longer and more complicated probate process. If you are the executor of a highly valued estate, hiring an experienced probate attorney can significantly lower the time and cost of probate. 

Complicated assets  -- Dealing with assets such as intellectual property rights or commercial businesses requires continuous handling throughout the probate process. A probate attorney can help efficiently manage, appraise, or sell these assets. 

Disputes -- Contests to a will can significantly drag out the probate process. An attorney can help settle any disputes, or prepare a legal defense to ensure the original terms of the will are carried out.

What is the average cost of a probate lawyer?

The most common ways a probate attorney will charge are by the hour or a flat fee. An experienced probate attorney with a sense for the amount of time needed for a particular case may charge a flat fee for their services regardless of the hours spent. That said, hourly rates are common and can make sense for both you and your attorney in many circumstances. 

There are pros and cons to the different billing methods a probate lawyer might use

Whether under an hourly rate or flat fee arrangement, how much a probate attorney’s services ultimately cost will vary depending on the attorney’s experience, your location, and the extent of representation provided by the lawyer.

Generally speaking, probate lawyers with significant experience in probate administration are likely to charge higher fees. The location in which the lawyer practices may also influence the costs. Fees are likely to be higher in metropolitan areas compared to more rural locations. (For instance, you can expect the hourly rate to be upwards of $200 per hour in larger metro areas).

Be aware that some states allow the attorney to be paid a percentage of the total estate value. State-specific laws determine what percentage the probate attorney could charge for their services. States allowing such fees include Florida, California, Iowa, and Missouri. 

The attorney fees are taken out of the estate before the estate is distributed to beneficiaries.

Hiring a probate lawyer to handle limited tasks

The executor may decide they only require attorney assistance with specific probate tasks. For example, an executor might hire an attorney to handle the payment and filing of estate taxes and handle all other aspects of the process themselves. 

Hiring a probate lawyer for specific tasks can significantly lower attorney costs.  If you decide to hire a probate lawyer for limited legal representation, ensure that both parties are clear on their respective responsibilities and the scope of the representation.

The final word on probate lawyers

The probate process can often become too complicated to handle on your own. The experience and expertise of a probate lawyer can be a crucial resource, particularly if you find yourself as the executor or administrator in a probate case. 

The role of a probate attorney can vary depending on whether there is or is not a will in place. But in either scenario, three factors you should consider when deciding whether or not to hire a probate attorney are:

  • How large is the estate
  • How complicated are the assets in the estate
  • Are there any disputes over the estate

It is good to understand the costs up front, and many probate lawyers can provide legal assistance for discrete tasks rather than managing the entire case which will help keep costs down. But it can often save you money in the long run to hire a probate lawyer, particularly when larger estates or complicated assets are involved.

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