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What Is a Probate Lawyer?

Legal Assistant Resources, Wills

Jimi Hendrix, the legendary guitarist, died without a will in 1970, leaving behind an estate that’s currently valued at more than $160 million. And now, more than five decades later, the bitter battle over its control rages on.

This is a prime example of what could go wrong when people die intestate – or without a will. It leaves your loved ones vulnerable, and more often than not, you’ll have all sorts of people coming out of the woodwork to claim a stake.

You don’t have to be a wealthy celebrity to have a will. If you have any assets that matter a great deal to you, it’s always better to decide while you’re still alive who should get them. If you don’t, then a probate lawyer would have to step in after your death to help your surviving beneficiaries get their share of your estate.

So, what is a probate lawyer, and what can they do for you? Here’s everything you need to know.

What Does Probate Mean?

Probate is a legal term that refers to the process of proving a will. It means making sure that the deceased’s estate is distributed fairly among the rightful heirs, whether or not there was a will left behind.

If there was no will left behind, the process must go through probate court to decide how the assets will be distributed among the deceased’s loved ones. For smaller estates, the probate process doesn’t usually take long. The matter can be concluded in a matter of weeks.

However, probate for bigger estates can take several years, especially when individuals with legitimate claims to the property and assets file petitions in court to contest the will. So, as you can expect, this could end up dragging out the process even longer.

What Does a Probate Lawyer Do?

what probate lawyer do

Probate lawyers wear many hats. The exact role they play in a probate process ultimately depends on whether or not the decedent had drafted a will before their death. Here’s what a probate lawyer does in both instances.

The Role of a Probate Attorney When There’s a Will

If an individual dies testate or with a legal will, the concerned parties may retain a probate lawyer in an advisory role to offer guidance to the concerned parties. These include the beneficiaries or the estate executor.

For instance, the attorney may inspect the will to check that it wasn’t created under duress or in a way that would contravene the interests and wishes of the person. This is particularly important if the decedent was elderly and suffered from dementia.

The Role of a Probate Attorney When There’s No Will

If an individual dies intestate, the decedent’s estate is distributed among the rightful beneficiaries according to the intestacy laws in the state where the property is located. Although these laws vary widely, in most states, the surviving spouse receives all the property.

In such instances, a probate attorney may be hired to help the estate administrator – who plays a similar role to the executor – in the distribution of the assets according to the state laws.

Keep in mind that regardless of what the deceased’s wishes were or the needs of the family members, the probate lawyer can only act within the confines of the state’s intestacy laws.

If one of the deceased’s relatives wants to become the estate’s administrator, the probate lawyer can help file renunciations with the probate court from all the other relatives. A renunciation is a legal statement from all the other beneficiaries renouncing their right to administer the decedent’s estate.

my last will

Other Roles of a Probate Lawyer

Aside from that, a probate attorney also helps the administrator/executor to:

  • Settle the deceased’s bills and debts
  • Collect and manage life insurance proceeds
  • Determine whether the estate owes any taxes
  • Find and secure all the deceased’s assets
  • Get the decedent’s assets appraised
  • Manage the estate’s checkbook

Keep in mind that wills and estate planning generally fall within the same area of law. However, there’s a distinct difference between a probate attorney and an estate planning lawyer.

The former works with living clients on how their estates should be administered when they die, while the latter deals with the estate administration process after the individual dies.

So, what percentage does a lawyer get for settling an estate? The answer to this varies widely and will likely depend on the complexity involved in the probate process.

One lawyer may charge you a flat fee while another may prefer to bill you by the hour. However, most charge a percentage of the estate’s value. This could be anywhere between 10 and 40 percent of the settlement amount.

When Does an Estate Have to Be Probated?

Contrary to what you might believe, not every estate has to go through the probate process. It is only required when there are no other means through which the decedent’s property can be transferred to the estate heirs.

If the individual had taken steps to distribute the assets before death, the estate doesn’t need to be probated. For instance, life insurance policies and retirement accounts usually have a designated beneficiary. These go directly to them on the death of the principal, subsequently by-passing the probate process.

The same goes for bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation and jointly owned assets with survivorship rights. In the latter, the surviving owner automatically inherits the deceased’s share of the property or asset.

In case you’re wondering how to avoid probate, here are three easy steps you can take:

  1. Name beneficiaries on all the accounts that you own. These include bank, brokerage, retirement accounts, and life insurance policies, and pension plans.
  2. Create a trust that leaves your assets and property to your beneficiaries upon your death. This allows for asset distribution without getting the courts involved.
  3. Hold your property jointly with your spouse or partner. That way, ownership automatically passes to them upon your demise.

Get Legal Help

If you were named the executor of an estate, or a loved one died without a will, you need to get in touch with an experienced probate attorney as soon as possible. They’ll hold your hand through the entire process to ensure that the decedent’s estate is distributed fairly among the rightful beneficiaries.

If you have any legal queries, chat online with a Laws101.com attorney today.