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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 TeampublishedNovember 28, 2023

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 estate administrator).

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. (An executor is basically a personal representative named in the decedent's will to oversee the administration of the deceased person's estate).

Typically, probate lawyers help with:

• Identifying & gathering all of the decedent's assets belonging to the estate
• Getting property appraisals for real estate
• 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
• trusts
• any other necessary documents 

Probate lawyers are typically hired after a person dies to help with administering their estate. Probate attorneys 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 estate 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 person or under undue influence. 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 assets according to state laws. When there is no will, state-specific intestacy 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.

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Why do you need a probate lawyer?

There are a lot of moving pieces when someone passes. And while you are navigating the probate process, there may be other issues to navigate.

For instance, state laws vary on things like inheritance taxes and estate taxes. Most states have neither an estate tax or an inheritance tax, and most estates valued below $12.92 million are exempt from federal estate taxes. But these are just a few of the types of things you may also have to juggle.

And crucially, some jurisdictions (like some courts in Texas) may require you to hire a probate lawyer to avoid the unauthorized practice of law, though most state laws do not take that approach.

So more generally, here are three of the main situations when it makes sense to speak with a probate attorney:

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. A probate 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 probate lawyers charge for their services 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. 

Whether under an hourly fee 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 probate lawyer to be paid a percentage of the total estate value. Probate laws vary by state and will 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 legal counsel with specific probate tasks. For example, an executor might hire a probate 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

So, what is a probate lawyer? Let's recap the key takeaways.

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 probate process which will help keep costs down. But it can often save you money in the long run to hire a probate lawyer, particularly when dealing with a larger or more complicated estate.

And if you speak with a local probate attorney, here are seven questions to ask before you hire a probate lawyer.

‍

Other articles on probate

• What is probate?
• Four ways of avoiding probate
• Can a bank foreclose on a house in probate?

In this article What is a probate attorney?What is the difference between an estate lawyer and a probate lawyer?What does a probate lawyer do?Why do you need a probate lawyer?What is the average cost of a probate lawyer?Hiring a probate lawyer to handle limited tasksThe final word on probate lawyers

Estate planning

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