What Is a Probate Attorney and What Do They Do?

Latest Facts and News

• As of 2024, the average cost of probate in the US ranges from 3-7% of the total estate value
• Recent changes to estate tax laws have increased the federal estate tax exemption to $12.92 million for 2023
• The COVID-19 pandemic has led to an increased demand for estate planning and probate services
• More states are adopting electronic will laws, potentially simplifying the probate process in the future

When someone passes away, their loved ones are often left with more than just grief: they’re faced with the complicated task of managing the estate. 

And in that phase of processing so many things, there are some of the toughest questions that start to pile up, like →

Who handles the legal side of things?
What happens to their assets?
How do you ensure everything is done the right way? 

Not just that, protecting their legacy and avoiding unnecessary stress during an already difficult time is what makes it moe difficult.

To make the process easy, people do hire probate attorneys. They step in to guide you through the legal process, making sure every detail is handled correctly and efficiently.

In this blog post, we will explore what is a probate attorney, what they exactly do, and why their expertise is so valuable when it comes to dealing with the complicated laws of estate management.

Definition of a Probate Attorney

Let’s begin with answering, “What is a probate attorney?” 

A probate attorney, also known as an estate lawyer, is a legal representative who helps manage the legal process of settling someone’s estate after they pass away. The probate lawyer guides the executor or administrator of the estate to ensure all legal steps are followed.

The Probate Process Explained

The probate process has many steps, and a probate attorney ensures each one is handled properly. Knowing what is a probate attorney helps you understand their role in managing tasks like validating the will and distributing assets.

Here’s how the probate process works:

1. File the Death Certificate: The first step is to submit the deceased person’s death certificate to their local court to officially begin the probate process.
2. Provide the Will: Submit the deceased person’s will to the probate court. The court will review and confirm its validity before moving forward.
3. Apply for Probate: Once the will is validated, you’ll need to file a formal request (petition) to initiate the probate process and be authorized to manage the estate. If you are someone who knows what is a probate attorney in a good way, you already know they can help here, as their expertise ensures proper filing and avoids unnecessary delays.
4. Get Court Approval: If your petition is approved, the court will give you legal permission to handle the estate and oversee its distribution.
5. Notify Beneficiaries: Inform the individuals named in the will about the probate process. If no will exists, the court will follow state laws to determine who inherits the estate.
6. List and Value Assets: Create a detailed inventory of the deceased’s assets, including their values, and submit this to the court. Be sure to also identify any debts, taxes, or bills associated with the estate.
7. Settle Outstanding Debts: Use the estate’s funds to pay off any debts, taxes, or bills. These must be cleared before any remaining assets can be distributed to beneficiaries.
8. Distribute the Assets: After debts are paid, request court approval to distribute the remaining assets to the beneficiaries as outlined in the will. If approved, proceed with the distribution.
9. Close the Estate: Once all assets are distributed and obligations are met, file a request with the court to close the estate. This final step officially concludes the probate process.

By completing these steps, the probate process ensures that the deceased’s estate is handled properly and all legal requirements are met. 

And make a note; this is where knowing what is a probate attorney becomes very valuable. They can guide you through these final steps to bring the process to a smooth and timely conclusion, providing closure for everyone involved.

Testate vs. Intestate Probate

Whether it’s testate (with a will) or intestate (without a will), the probate process often requires legal guidance. Knowing what is a probate attorney helps you understand how they assist in ensuring the estate is managed properly.

Here’s a comparison of Testate vs. Intestate Probate in a table format:

Understanding whether a probate case is testate or intestate is important in determining the next steps. 

If you’re unsure about how the probate process works in your situation, consulting with our probate attorney can provide valuable guidance to ensure everything is handled properly.

What Does a Probate Attorney Do?

Now that we know what is a probate attorney, let’s see what the fiduciary duty they do:

Helping the Executor or Administrator

The executor or administrator is in charge of managing the estate. A probate attorney guides them every step of the way—like figuring out what assets there are, handling debts and taxes, and ensuring the rest goes to the right people.

Finding and Valuing Assets

From bank accounts and real estate to investments and personal items, a probate attorney helps track everything down. They also figure out how much these assets are worth, which is important for taxes and dividing things up among beneficiaries.

Handling Legal Paperwork

Probate involves a lot of forms and filings, and it’s easy to feel overwhelmed. A probate attorney takes care of all the paperwork, making sure it’s accurate and submitted to the court on time.

Representing the Estate in Court

If there’s a disagreement or legal issue, a probate attorney steps in to represent the estate. Whether it’s resolving disputes or defending the estate’s interests, they’ve got it covered.

Communicating with Beneficiaries and Creditors

Keeping everyone in the loop is a big part of the job. A probate attorney updates beneficiaries on what’s happening and works with creditors to handle debts or dispute any improper claims.

In short, the answer to, “What does a probate attorney do?” is they make sure everything runs smoothly, so you don’t have to worry about the legal details.

Know More → Taking Care of What Matters: A Simple Approach to Estate Planning

When to Hire a Probate Attorney?

There are times when managing the probate process on your own might not be enough because you may lack the proper understanding of it. Certain situations call for the guidance and it becomes very important to understand “What is a probate attorney?” so that you know who you are hiring.

Here are reasons to know the situation when hiring a probate attorney is necessary: 

• The complex estate includes multiple properties, businesses, or valuable assets.
• There are disputes among heirs over the will or asset distribution.
• There is no will, and state laws will determine the estate’s distribution.
• Someone is contesting the will, claiming it’s invalid.
• The will’s wording is unclear or open to interpretation.
• The deceased left significant debts or creditor claims.
• The estate may owe federal or state taxes.
• The executor feels overwhelmed managing the estate’s legal and financial responsibilities.

If you’ve encountered any of the scenarios above and you know what is a probate attorney. Then you already know they can make the process easier and ensure the estate is handled properly while protecting the interests of the beneficiary or anyone who is involved.

Benefits of Hiring a Probate Attorney

A probate attorney guides you through the process, ensuring everything is handled correctly, saving time, and preventing costly mistakes. Here are the key benefits:

1. Understanding State Laws: Probate laws are different in every state. A probate attorney who knows your state’s rules ensures all steps, like filing paperwork and notifying creditors, are done correctly and on time.
2. Preventing Family Disputes: The loss of a loved one can sometimes lead to arguments about dividing assets. A probate attorney acts as a neutral party to mediate disputes or prevent any legal battles and ensure fair distribution based on the will or state laws.
3. Making Probate Easier: Probate involves a lot of paperwork and steps that can feel overwhelming. A probate attorney expedite the process, making sure that everything is done smoothly and without delays.
4. Protecting the Estate: Creditors or family members may make claims on the estate. A probate attorney reviews these claims, resolves any disputes, and makes sure the rightful heirs are protected.
5. Handling Taxes: Probate includes filing the deceased’s taxes and possibly estate taxes. A probate attorney ensures taxes are handled properly and looks for ways to reduce tax burdens on the estate.
6. Managing Complicated Estates: If the estate includes multiple properties, businesses, or investments, a probate attorney takes care of valuing, transferring, and distributing these assets properly.
7. Avoiding Executor Mistakes: Executors are responsible for managing the estate correctly. A probate attorney helps prevent errors, like missing deadlines or mismanaging assets, which could result in personal legal issues.
8. Managing Court Matters: Probate often involves court filings and hearings. A probate attorney handles these steps, ensuring everything is done on time and correctly.
9. Handling Out-of-State Issues: If the deceased owned property in another state or heirs live far away, a probate attorney ensures all legal requirements are met, avoiding delays.
10. Administering Trusts: If a trust is part of the estate, a probate attorney ensures the trust’s terms are followed and assets are distributed correctly.
11. Meeting Court Rules: Probate courts require reports and approvals at different stages. A probate attorney ensures all court requirements are met to keep the process moving.
12. Providing Personalized Help: Every estate is unique. A probate attorney has specialized knowledge and thus can give tailored advice to handle specific issues, such as unusual assets or family disagreements.

Also Read → Estate Planning for Blended Families: Ensuring Fairness and Protection

Costs of Hiring a Probate Attorney

The cost of hiring a probate attorney varies based on factors like the estate’s complexity, location, and how the lawyer charges fees. 

If you understand what is a probate attorney and the range of services they provide, it becomes easier to evaluate whether the fees align with the value they bring or not.

Here are the most common billing methods:

1. Flat Fees: Some lawyers charge a fixed fee for specific tasks, like preparing a will or handling simple probate cases.
2. Hourly Rates: Many charge by the hour, with rates typically ranging from $200 to $500, depending on their experience, location, and the case’s complexity. For large estates or disputes, rates can exceed $1,000 per hour.
3. Percentage of Estate: In some states, lawyers charge a percentage of the estate’s value. For example, Florida and California allow statutory percentages for large or complex estates.
4. Additional Costs: Lawyers may also bill for court fees, appraisals, or other professional services, either directly to you or from the estate.

How to Choose the Right Probate Attorney?

Finding the right probate attorney is essential for managing an estate smoothly. Before making a choice, it’s helpful to understand what is a probate attorney and how they can assist during the process. 

Here are some tips to help you select a qualified professional:

Look for Experience in Probate Law

Choose an attorney who specializes in probate cases. When you know what is a probate attorney, you understand how their expertise with local laws and court procedures can make the process faster and more efficient.

Check Their Credentials

Verify that the attorney is licensed and in good standing with your state’s bar association. Look for additional certifications or training in estate planning or probate law.

Ask the Right Questions During Consultations

• How long have you been handling probate cases?
• What is your fee structure (hourly, flat fee, or percentage of the estate)?
• Do you have experience with cases similar to mine?

Evaluate Communication Skills

Good communication is key to a smooth process. When you really understand what is a probate attorney, you’ll see how important it is for them to clearly explain legal terms and actively listen to your concerns.

Review Online Feedback

Understanding what is a probate attorney allows you to identify the qualities that truly matter when evaluating reviews. Focus on feedback that highlights their ability to handle complex probate cases, communicate clearly, and provide timely solutions to legal challenges.

Understand Their Availability

When you understand what is a probate attorney, you’ll realize their involvement is critical to ensuring the probate process runs smoothly. Make sure the attorney you choose has the time to personally handle your case instead of delegating important tasks to less experienced team members.

Bonus → Essential Steps for Effective Estate Planning

What are the Alternatives to Probate?

In some cases, probate can be avoided entirely by using alternatives that simplify the process of transferring assets after someone passes away. 

If you understand what is a probate attorney and the role they play, you can better decide whether these alternatives are suitable for your situation or if probate is the better option.

Here are some common alternatives:

Muniment of Title

If the deceased has no outstanding debts, their will can be probated as a muniment of title. This allows the estate’s property to be distributed without going through a lengthy probate process.

Transfer on Death Deeds

A valid transfer on death deed automatically transfers ownership of real estate when the owner dies. If real estate is the only asset, this option might eliminate the need for probate.

Affidavit of Heirship

This involves someone who knew the deceased confirming details about their family and property. In some cases, title companies accept this affidavit to transfer real estate without requiring probate. It can save both time and money if applicable.

Small Estate Affidavits

If the estate’s total value is less than $75,000 and there’s no will, a small estate affidavit can be filed to settle the estate without probate. For larger or more complex cases, heirship determination or independent estate administration may be required.

Each of these alternatives has specific requirements, and understanding which one fits your situation best can be complex. 

This is where SWAT Advisors can help. With their expertise in estate planning and probate, they can guide you through the options, assess your unique circumstances, and ensure the process is handled efficiently and in compliance with the law.