If you have recently lost a loved one, concerned acquaintances may have recommended that you hire a probate attorney. But what is a probate attorney? How much do probate attorneys charge for their services? And what do they do? Do you need a probate lawyer? These are important questions but do you really need to be tackling them after you just lost a loved one?
Below is your thorough guide on probate attorneys: what they do, how much they cost, and whether you actually need one. Turn to this resource when you need some quick answers to your questions.
Quick Definitions
| Legal Term | Definition |
| Testator | The person making a last will and testament |
| Intestate | Dying without a valid will |
| Intestate succession | The hierarchy of which of your family members have a legal right to inherit your property if you die intestate |
| Holographic will | A handwritten will that is not witnessed |
| Executor | Usually refers to a person who has been nominated by the testator to handle their final affairs (term varies by state) |
| Administrator/Personal representative | Usually refers to a person who has been appointed by the court to handle the testator’s final affairs (term varies by state) |
| Beneficiary | A person named in a document to receive property or an interest in property |
| Heir | A person who has a legal right to inherit from the testator |
What Is a Probate Attorney?
Before you can have a good understanding of “what is a probate lawyer?” you need to understand what is probate and what it entails. Probate is the process of settling a deceased person’s final affairs. It is generally a process overseen by a probate court, which handles only specific cases, including those that involve:
- Wills, living trusts, and estates
- Guardianships
- Conservatorships
Probate lawyers help with cases handled through probate court. Often, probate lawyers help a named executor or personal representative carry out their duties. In other situations, an heir or beneficiary may hire a probate attorney to contest the will or represent their interests during the probate process.
Some probate attorneys are also estate planning attorneys who help prepare estate planning documents for people, such as:
- Last wills and testaments
- Power of attorney documents
- Trust agreements
- Deeds
- Healthcare power of attorney documents
- Living wills
Online companies like PassDown make personalized estate planning easy and affordable without involving an attorney.
Why Is Probate Necessary?
When a person dies, they still legally own property. They might also owe debts. Probate is a legal process that helps wrap up a person’s final affairs, such as settling claims against their estate and distributing their estate property to their heirs or beneficiaries. Without probate, property might go undistributed or unclaimed.
What Is the Probate Process?
The probate process varies by state. Several states, but not all, have adopted the Uniform Probate Code (UPC), which helps to streamline the process. While some jurisdictions adopted the UPC in whole, others have only adopted the UPC in part, and others have refused the UPC in its entirety, creating a tremendous amount of difference in probate proceedings from state to state.
While the process may vary, the steps usually include:
- Probating the will. This may involve submitting the physical last will and testament to the court for examination. The court may question the witnesses to the will about what they observed and if the testator appeared to be mentally competent. (This standard also varies by state law). Some states allow for the admission of self-proving affidavits that basically serve the same purpose as the witnesses appearing in court.
1a. Opening the probate case. If the decedent died without a will, they are said to die
intestate. Opening a probate case does not depend on whether or not a person dies without a will. Anyone who owns property at the time of their death can have an estate that goes through probate after they die. However, a will lets the decedent direct where their property goes instead of passing it onto their next of kin.
- Issuing of letters testamentary or letters of administration. These letters give the executor or administrator, respectively, the right to act in this official capacity.
- Posting of bond. The executor or administrator may be required to post a bond (though the testator can often waive this requirement in their last will and treatment), which protects beneficiaries from the executor’s errors.
- Providing notice. The executor or personal representative may be required to provide notice of the death and their appointment in this official capacity to beneficiaries, heirs, and the testator’s creditors.
- Inventorying estate assets. The executor or administrator may be required to inventory the assets and provide the court with an inventory of the testator’s assets. They may also be required to safeguard the property. They may also need to have some assets professionally appraised.
- Settling debts. The executor or personal representative uses the testator’s assets to pay off valid debts.
- Distributing remaining assets. Providing the remaining assets to the beneficiaries or heirs is one of the last steps in the process.
- Accounting and closing of the estate. The executor or administrator may need to submit documentation to the court that summarizes what they did and where the testator’s property went before being officially able to close the estate and be removed from their position.
Do I Need a Lawyer for Probate?
Whether you need a lawyer for probate depends on many different factors, including:
- Is the estate complicated?
- Is the estate valuable?
- Does the estate involve many different types of assets?
- Does the estate include real property?
- Are there problems among the heirs and/or beneficiaries?
- Is there a valid will?
- Is there a trust?
- Is the estate plan simple or complex?
In some cases, loved ones decide to hire a probate lawyer because this can simplify the process for them when they are dealing with difficult emotions associated with grief. Others lead busy lives and are not prepared to take on the responsibilities of an executor without professional guidance. Some estate planning lawyers offer a free consultation to discuss how they can help with the case.
Most states do not require you to have a probate lawyer, so whether or not you hire a probate lawyer is usually up to you.
What Do Probate Lawyers Do?
Before deciding whether or not you want to hire a probate lawyer, you might want to know what probate attorneys do. Some of the regular tasks that probate lawyers help with include:
- Obtaining the death certificate
- Explaining the legal matters related to the case
- Attending probate proceedings
- Validating the will with the probate court
- Identifying and inventorying estate assets
- Ordering necessary appraisals for valuable property
- Providing legal notice to beneficiaries, heirs, and creditors
- Preparing publication notices
- Opening and managing financial accounts held in the estate’s name
- Preparing court documents and legal filings
- Identifying and resolving claims against the estate
- Paying debts and final expenses
- Filing the final income tax return
- Determining and paying applicable estate taxes and inheritance taxes
- Retitling assets in the names of beneficiaries or heirs
- Making final distributions to heirs or beneficiaries
These lawyers may also help with probate litigation if legal issues arise during the probate administration, such as representing parties involved in will contests. They may also assist trustees with trust administration.
What to Look for in a Probate and Estate Lawyer
If you are searching for a qualified law firm to assist you with probate administration or other legal matters before probate court, here are some characteristics to look for:
- Experience resolving legal matters related to probate administration
- Knowledge of probate and elder law
- Familiarity with the local probate courts
- One or more licensed attorneys who are in good standing in the local jurisdiction where the case will be probated
- A focus on practice areas related to probate law, including estate planning, family law for guardianship cases, and tax law
Costs of Hiring a Probate Lawyer
The costs to hire a probate lawyer may vary tremendously from one jurisdiction to another and depending on how complex the case is. The American Bar Association’s model rules state that lawyers should not charge an unreasonable fee, which is determined by examining factors such as:
- Whether the fee is fixed or contingent
- The lawyer’s years of experience
- The lawyer’s ability and reputation
- The time and labor required to complete the requested legal services
- The novelty of the legal issues involved in the case
- The skills required to properly perform the legal services
- The likelihood the accepting the case will prevent the lawyer from taking other cases
- The nature and duration of the professional relationship between the lawyer and client
- The fee normally charged by other lawyers in the area for similar legal services
- The time limitations imposed because of the circumstances or by the client
- The amount of money involved the results the lawyer is able to obtain
The method of charging for attorney fees can also vary. Common ways probate lawyers charge include:
Hourly Rate
The hourly rate is the most straightforward but potentially most expensive probate lawyers charge for their services. Lawyers using this method multiply their hourly rate by the number of hours they work on a case and then bill their clients for their time, sometimes after charging a large down payment or retainer. For example, if the lawyer charges $500 an hour and works ten hours, you’d get a bill for $5,000.
Flat Fee
A flat fee is a set amount of money the attorney charges, typically for routine tasks or services the lawyer has performed and can estimate approximately how much time the case will take. A probate lawyer may offer a flat fee for less complicated and uncontested probate cases.
Statutory Fee
These fees are set by law. Some jurisdictions set upward limits on how much probate lawyers can charge, and lawyers may use these amounts as a ceiling for their services. California statutory probate fees are a good example of this structure.
Contingency
Some states allow probate lawyers to charge a percentage of the value of the probate estate. For example, in Florida, probate fees based on the value of the estate are considered reasonable if they do not exceed:
- $1,500 for estates valued up to $40,000
- $2,250 for estates valued between $40,001 to $70,000
- $3,000 for estates valued between $70,001 to $100,000
- 3% on the next $900,000 for estates above the first $100,000
- 2.5% on estates above $1 million to $3 million
- 2% for estates above $3 million to $5 million
- 1.5% for estate above $5 million to $10 million
- 1% for estates above $10 million
Alternatives to Hiring a Probate Lawyer
Probate is often a long, stressful, and expensive process – which is why many people want to avoid it. Some alternatives to formal probate and hiring a probate lawyer include:
DIY
You may decide that your loved one’s estate is simple enough that you can handle the case on your own. Many jurisdictions list the various forms you need to complete and have instructions on completing them on their court websites. You can also use online tools to help with these documents.
Informal Probate
Where there are no disputes or claims pending, informal probate could be an option in states that offer it. Informal probate is a simplified paper-based process that allows an executor to administer an estate without the supervision and oversight of a judge. This could be a more expedited, less complicated, and less expensive probate process for estates.
Small Estate Affidavits
In some jurisdictions, a small estate can be settled by filing a simple small estate affidavit with the probate court that states that the decedent died, lists the decedent’s assets, state that the decedent’s final debts and expenses have been paid, and explains the affiant’s relationship to the decedent and their legal right to inherit the listed property. The key consideration here is the estate will need to be valued at less than a certain amount, which will vary from state to state in the states that allow for this process.
Trusts
An effective way to avoid the probate altogether is a process is to transfer property into a trust so that when the trust creator dies, the trust legally owns the property in the trust, not the creator.
Non-Probate Transfers
You can also make non-probate transfers that move property at the time of the decedent’s death to a beneficiary. This can help distribute property out of the probate estate, such as:
- Real estate if held jointly with a right of survivorship
- Financial accounts, retirement accounts, and brokerage accounts (i.e. accounts with stocks and bonds) if a payable on death or transfer on death beneficiary is listed
- Vehicles in some states such as in California through an Affidavit for Transfer Without Probate
- Life insurance policies
What to Look for in a Probate Lawyer
If you decide you want to hire a probate lawyer, here is a brief list of qualities you should look for:
- Knowledge of current probate laws and estate laws
- Experience with probate cases
- A track record of success
- An approachable demeanor
- Transparency and good communication skills
Takeaway
A probate attorney can help with a variety of tasks, but you might need one, depending on the situation.
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