What Is a Probate Lawyer and When Would You Use One?

At one point or another throughout our lifetime we hear about probate lawyers.

If you’re like most people you don’t pay attention until one day you’re faced with the inevitable – you need a probate lawyer.

So what specifically is a probate lawyer?

A probate lawyer manages the filing of the last testament or will of a deceased individual.  Sometimes there are some wicked disputes that arise from the disposition of property.  Basically a probate lawyer is an estate or a trust lawyer.

Far too many people do not think about finding a probate lawyer until someone has passed away.  When this happens, then there is a sense of urgency to hire a probate lawyer therefore not allowing time to shop around for the lawyer who will best represent your interests.

This area of law can be simple and straightforward or it can be confusing and convoluted.  All this depends on the degree of estate planning by the deceased while they were living.

Before going any further this is a good time to stress the importance of having a will and making sure you have completed as much as possible to ensure that your family members are not going to experience any added emotional distress after you pass away.  It isn’t something we like to do, but in reality it truly can be the best thing you can do for your loved ones while you are alive.

Simply defined, probate is the process that occurs after an individual passes away that involves distributing assets and taking care of any debts.  This is a process that happens regardless of whether or not there is a will.

What Exactly Does a Probate Lawyer Do?

Probate attorneys can help you create a last will and testament so that your family members can have some security in the event of your passing away.  They also can assist with trust planning (including living trusts) as well as powers of attorney and medical powers of attorney.

In addition, a probate lawyer can help a person with asset protection and of course the preparing and filing of all documents required by a probate court.

There are other matters that probate lawyers deal with such as income tax issues, requesting court permission for various actions as required and the retitling the decedent’s assets to the beneficiaries.

Some people question if they really need a lawyer to do all this and there is no for sure answer because ultimately the choice is up each individual.

Legally a lawyer does not have to write a will or handle an estate.  This can be done on your own but it is not advisable because failure to execute the property legally may end up in a personal liability lawsuit after all is done.  Challenges to a will can and do occur on a regular basis and when this happens it becomes necessary to have a good lawyer who is fully equipped to handle the case.

Making sure that everything is taken care of before passing on is crucial because one mistake may set back the executor of your will by months.  An experienced lawyer will know everything that needs to be done in order to probate an estate in a timely manner.


Remember, having a last will and testament may ultimately be the best gift you can give to your loved ones.

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Published or updated August 25, 2013.

Comments

  1. Graham Lutz says:

    Let’s get rid of estate taxes and cut need for probate lawyers in half!

    • Estate taxes and probate lawyers have almost nothing to do with one another. It is estimated only a couple thousand people will pay any federal estate taxes this year…how many will die and need to pass assets?

      The subjects aren’t related.

  2. Thanks for the info; this article is very helpful. My husband’s dad is close to passing away, and he and his siblings don’t exactly agree on how the will should be executed, so we’re doing as much research as we can into probate lawyers.

  3. if my elderly mother has creit card debt and she was to (God forbid) pass away, will i be held responsible for htat credit card debt because i ma her daughter??? thank you.

    • You personally will be not be held responsible for her debt, but her estate could, meaning if you got something coming to you from her estate, they might be able to take their share first, see a probate lawyer

    • Jeffrey Matsen says:

      Debt can not be transferred to anyone other than a spouse with a joint account. As the commenter below mentioned, during the probate process all final debts will be settled, including their final tax return. Only after this is done will the beneficiaries receive anything from the estate. However sometimes beneficiaries will choose to pay off the debt to keep the house. Anything of value in the estate can be used to pay off the debt- excluding the life insurance policy.

      However, creditors have been known to try and convince families of those who pass away with a large amount of debt that they are liable for the debt. This is not true unless you were a guarantor for a major purchase/debt

  4. My 12 yr old grandson’s father recently passed. The will was not signed. He is the only heir. Does his mother need to have a judge give her legal custody in order for her to continue to look out for his interest? Should she get a probate lawyer to represent the 12 yr old. Not sure what steps to even take. This was a week ago.

  5. This article is very clear and straight forward, and is a good reference. Unfortunately, many people are confused by the probate process. In actuality, it is very basic. When a person passes away, someone (usually the spouse) is named in the deceased’s will to step up and take control of the estate. That person (the Executor) is responsible for funeral and burial arrangements, paying out debts and taxes, then distributing whatever is left (if anything) to the named beneficiaries. There are all kinds of things that can be problematic, but this is the basic process.

  6. Thanks for the info. If there is any doubt about what course of action to take or the ability to handle paperwork surrounding the estate an executor or personal representative should consult with a probate lawyer. This can help prevent problems from occurring in estates that might be large or small.

  7. Angel Eyes says:

    My mother was my grandmother’s Power of Attorney and both of them died. My mother had 2 cars that were hers but were placed in my grandmother’s name along with the car insurance. My mother also has one living sibling. One of the cars is paid for and the other is not. What happens to the cars? My mother was married and he is still living but he has no drivers license. What are the surviving spousal rights in Viriginia?

  8. Thanks Glen for such a straight forward and informative post! Hiring a probate attorney is definitely in the family’s best interest if they want to expedite the legal process or if there’s some contest to the will. Another alternative that requires a bit of premeditation would be to transfer assets in to a trust or gradually gift away the estate- both of these are tax free up to a certain amount and automatically bypass the probate process. As you noted not only can this take many months or possibly years, up to 10% of the estate can be lost in probate and court fees.

  9. “Before going any further this is a good time to stress the importance of having a will and making sure you have completed as much as possible to ensure that your family members are not going to experience any added emotional distress after you pass away. It isn’t something we like to do, but in reality it truly can be the best thing you can do for your loved ones while you are alive.” Though most are loathe to discuss their own mortality, it is something people should plan for. Creating an effective and efficient estate plan can relieve potential strain on one’s family.

  10. My husband passed away Dec. 2011 and our house is still in his name, I do not know how to put it in my name. I don’t believe I’m on the house at all because he bought it before we were together… Please help!!!!

  11. Micheal W says:

    My Grandfather passed and had no will, he had two sons, one was my father but he’s has passed. The other son is still living and has taken over everything. Do I have any rights to anything? I believe I should get my father’s portion of my Grandfathers estate. Can that happen?

  12. Rob Martin says:

    The article pretty much spells it out but…find a lawyer with integrity is not always easy.
    Word of advice….do not trust anyone…that means siblings even parents.
    KEEP RECORDS…for everything…period.
    I am involved with a disgruntled sister and lawyers in a small town that know and protect each other. I am trying desparatetly to get my case to court.
    Keep track of everything. Make sure you lawyer accounts for services a least monthly. Mine for example nothing for over 2 yrs.
    Remember you don’t pay any fees to the Law society of Upper Canada (LSUC) lawyers do. They get services for that.
    Remember lawyers have the ear of the court …basically you do not (unless you go to court?). The court relies on lawyers..to be honest, truthful etc. That is not always the case.
    I know I have rambled on a bit but there are countless numbers of Estate Horror stories out there. Mine is one of them.

  13. Paul Lessard says:

    I have several questions and concerns in which hopefully can be addressed for me here. Ultimately I need to know if I legally stand any ground and/or if hiring an attorney in my situatuion would prove futile or not.

    An Aunt of mine passed away almost a year ago and her will is currently being processed, or so I’m told. I am 32 years old and moved in with my aunt when I was 18, she kinda took me in. For most of my life she was basically my mother, performed the tasks and responsibilities that my biological mother didn’t. I feel like I’m currently being lied to by her sister and the rest of the family about the will. I’m being told that the most recent will she had made was from before I was born (1982). I’ve had many discussions with my Aunt before her passing as to what her wishes were and based on what I’m currently being told, nothing is to be as was said. I’m curious if a more recent will has been drawn up, could it be hidden or discarded so that the older will and it’s beneficiaries would be honored, instead of the newer one? I lived in the house that she owned when she passed with her for 14 years and other family members have access while I am denied access, her personal belongings are being sorted without me and my knowledge… She was like a mother to me and this whole situation is very disheartening. Do I hold any legal standing in this process? Is any of what she told me viable, can I dispute the current will or would doing so simply prove futile? Would hiring an attorney be at all benefit me at this point? If so, can anyone recommend a good probate attorney in the New York City area? Thanks in advance for any help.

  14. I have a son who committed suicide he was only 44 years old, no wife or children and he left no will. He left a journal for my daughter and he has specific things for her to take care of and signed on of the titles of hes vehicles as though he gave it to her. I have heard of some circumstances that caused him to do what he did. My son lived in my hometown in Racine, Wisconsin. I reside in Houston, Texas and my daughter seems to think because I am in Texas that I am not entitled to anything.

    • Your daughter can think what she wants to think but it does not mean that she is right. If it’s that important to you…see a lawyer. Have you seen any of the documents/papers/instructions your son left behind?

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