What is a probate lawyer & when do you need one?

This estate attorney helps you probate an estate.

Elissa

Published January 29, 2021|3 min read

Editorial disclosure

Key Takeaways

  • Probate attorneys provide legal advice about the probate process, while estate attorneys can help create a plan to avoid probate

  • An executor or administrator can typically probate an estate on their own without a lawyer

  • Hiring a probate attorney will increase the [cost of probate](https://www.policygenius.com/wills/how-much-does-probate-cost/), but you may need to hire a lawyer if you are handling a complex estate or there is a dispute

A probate lawyer helps an executor settle a deceased person's estate. When someone dies, the personal representative of the estate, whether an executor nominated in the will or an administrator appointed by the court, is responsible for managing the decedent's affairs, which includes filing for probate. If the estate is very complex, the personal representative may choose to hire an attorney to help navigate the probate process, but it isn't typically required. Hiring a lawyer will add to the overall cost of probate. 

Probate attorneys are considered estate lawyers. An estate attorney helps someone create an estate plan (like a will and trust) during their lifetime. They can devise a strategy to pass along an inheritance and avoid probate, while a probate attorney specializes in providing legal advice on how to probate a deceased person’s estate.

What does a probate attorney do?

A probate attorney assists the personal representative in navigating the legal process known as probate. You can hire them to help with a specific task (or a few of them) when administering an estate.

The probate attorney can assist with any of the following probate matters:

  • Collecting and managing the decedent's assets

  • Appraising, evaluating, and selling estate assets, including real estate

  • Filing tax returns and paying estate tax

  • Settling debts and paying creditors

  • Preparing and filing documents with the probate court

  • Appearing in court for probate litigation

Related: Does a will have to be probated?

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When do you need to hire a probate attorney?

You may not need a probate attorney to settle a decedent’s estate, even if the decedent died without a will. A competent executor can go through probate alone and fulfill their fiduciary duty to the deceased’s estate. (See: What an executor does.) 

In addition, small estates with little or no probate assets can be settled outside of court and likely won’t require the services of a lawyer. However, there are a few instances when you’ll benefit from a probate attorney and legal advice they have to offer.

The estate is complex

A probate lawyer might be beneficial when you're trying to settle a very complex or wealthy estate. If the estate consists of business interests and expensive real estate holdings, a lawyer can help get a proper evaluation and decide what to sell or invest in for the best interests of the estate. A lawyer can also determine the value of the estate and any estate tax liability. 

When handling a complex estate, should the personal representative opt for a formal probate process (like a supervised probate proceeding), they are usually required to obtain court approval before they make any decisions. In some states, it may even be necessary to have a lawyer represent the estate and file the papers and appear in court with this type of probate.

There is probate dispute

You can also hire a probate attorney if you anticipate a probate dispute, such as when there are dissatisfied beneficiaries or difficult heirs. Hiring an attorney can prevent unwanted scrutiny during probate administration, since they’ll lend legal authority and credibility that ensure the beneficiaries you’re acting in the best interests of the estate.

When a beneficiary contests a will, they should also hire a probate attorney, specifically a probate litigator. If someone believes a will to be invalid (such as when the testator lacked proper testamentary capacity to write the will or created it under undue influence), they’ll need to have proof. An experienced probate attorney can help build a case and present it in court. 

See how much it costs to contest a will.

To avoid having your will contested, make sure you write an air-tight will with few ambiguities. To avoid having to hire an attorney, you could also set up a trust to pass on assets outside of probate court. You can get both a will and living trust with Policygenius.

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