What is a Probate Attorney? How to Know if You Need One

Sep 15, 2023 | Probate

There’s an old joke probate attorneys tell that goes like this:

A 5th-grade math teacher gave his class the following problem to solve:

A rich woman dies with $10 million. In her will, she leaves one-fifth of the money to her husband, one-fifth to her son, one-sixth to her assistant, and gives the rest to charity. What does each beneficiary get?

The class thinks for a long time. Finally, a child raises their hand and answers, “A LAWYER!”

It’s a funny story, and one that suggests just how complicated executing a will can be. Hiring a probate attorney can simplify the process.

What is a probate attorney?

A probate attorney is a lawyer who specializes in getting an estate through the legal hoops required to make the final distributions of assets to beneficiaries (a.k.a. the probate process). It’s also common for probate attorneys to help clients prepare and file their estate plans, wills, and trusts.

Probate lawyers can represent the estate itself, the estate’s beneficiaries, or parties who wish to contest a will

What does a probate attorney do?

Without the right preparation and education, probate can be a long, complicated, and expensive process. A probate attorney’s job is to help clients navigate probate court as quickly and painlessly as possible, especially since those clients are usually also navigating a difficult loss.

Before an estate can be settled, the executor or estate representative must file a petition to begin probate, notify all creditors and beneficiaries that the estate is in probate, inventory all estate assets, pay off outstanding debts, and distribute assets to the beneficiaries. These tasks must occur on a timeline, on that the courts strictly adhere to. 

Each of these steps involves court dates and legal filings that can be much easier to manage with help from a knowledgeable attorney. As a legal representative, a probate lawyer can help with tasks such as:

  • Locating any existing will 
  • Locating and documenting all estate assets (retirement accounts, real estate holdings, real property, life insurance proceeds, investment accounts, saving or checking accounts, collectibles, etc.)
  • Interpreting instructions from the will
  • Locating and notifying heirs or beneficiaries
  • Determining and paying estate income taxes and inheritance taxes
  • Filing estate tax returns as necessary
  • Obtaining appraisals of property or other valuables
  • Providing legal counsel if the estate is (or should be) contested
  • Changing titles and deeds for inherited property
  • Administering trust accounts
  • Preparing and filing accurate, on-time probate documents 
  • Making court appearances

Unless an individual has created a living trust before their passing, their assets will have to go through probate. This is true even if someone dies intestate (without a will). 

Probate is a matter of public record, meaning anyone can find out how an estate that went through probate was distributed, but probate lawyers are subject to the same client-attorney privilege as other attorneys.

When should you hire a probate attorney?

While probate may seem simple at first, probate law is nuanced and complicated. Inexperienced executors who don’t decide to hire a probate lawyer can make simple mistakes that keep assets tied up for years.

People regularly skip steps, miss deadlines, mishandle creditor claims.  These all can lead to personal liability of the executor. 

While we can’t stop all the do-it-yourselfers from going it alone, certain situations make it essential to hire a probate attorney. For example, if the deceased did not leave a will or any instructions for the distribution of their estate, a probate attorney can help you protect your rights as a beneficiary. It’s also almost impossible to contest a will (or fight a contestation) without help from an experienced probate lawyer.

Some simple or small estates that aren’t contested may get by without an attorney, but it’s important to work with a probate attorney if the estate is large or complex or if there is a contentious relationship between beneficiaries. Using a probate attorney can help you navigate deadlines, requirements, and negotiations that may be necessary to settle the estate.  

Additionally, some states require a probate court in most cases (Hawaii, Missouri, North Dakota, and Arizona). In Texas, a probate lawyer is required by most court’s local rules. 

What to look for in a probate attorney

Not all probate attorneys are created equal, and finding the right lawyer can mean the difference between a successful probate process and a stressful one. 

It’s important to find an attorney you trust to represent you in the probate process.Not all probates are the same.  Here are some questions you can ask:

  • Do you charge hourly or contingency fees? 
  • Are you licensed to practice law in my state? (This should be a given, but it’s always good to check)
  • How long have you practiced law?
  • How much experience do you have in probate law? 
  • What other areas of law do you practice?
  • Have you gone before the court or judge who will hear my case? How many times? 
  • What potential issues do you see with my case?
  • Have you worked on cases similar to mine before?
  • How and how often do you communicate with your clients? What kind of updates will I get? 
  • Will I be working with you for the duration of my case, or will I be passed to junior associates?
  • Do you handle contested probates? 
  • How long does it take this particular court to handle an average probate? 
  • Do you handle Taxable Estates? (Total Assets exceeding the Estate Tax Exemption Amount – $12.92 Million in 2022) 
  • Do you handle Estate Tax Returns (IRS Form 706)? 

Your consultation will be more effective if you come with documents that help the attorney understand your case, such as a copy of the estate owner’s death certificate, the will and any applicable codicils, financial records, information on liens and liabilities, and a list of beneficiaries or heirs.

It’s wise to write down thoughts and impressions during your consultation to compare what each attorney said and how you felt about the meeting later.

Book a consultation with a trusted Texas probate attorney

At the law firm of Shann M. Chaudhry Esq., Attorney at Law PLLC, we pride ourselves on providing caring, compassionate legal representation that empowers each client. 

If you have questions about estate planning or the probate process, contact us for a consultation today. Our experienced team has the knowledge and skills to help you, and we’re ready to start now.

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