What Does a Probate Attorney Do and Who Do They Represent?

When a person passes away, their estate (any assets and liabilities they have left behind) must be managed.  This process is known as probate.  Probate deals with validating the will, paying the taxes, liquidating the liabilities, and distributing the assets of the deceased person. 

Bereavement is difficult enough without also having to think about the “business” of dying.  Whether you are the executor or beneficiary of a loved one’s estate, hiring a qualified probate lawyer who can help you navigate the ins and outs of estate settlement may be your best course of action.  

What Does a Probate Attorney Do?

If the decedent left behind a will, chances are they named an executor to carry out the terms outlined in that will. An executor can hire a probate attorney to help them do so. The executor and their attorney both have a legal obligation to honor the decedent’s wishes, as laid out in the will, representing the interests of the decedent’s estate, as opposed to the interests of the heirs and beneficiaries.

In cases where a decedent has died intestate, or without a will, a probate court can appoint a representative to distribute their assets according to the laws of hereditary succession.   According to plannedgiving.com, it is estimated that 68% percent of Americans do not have a valid will, and 35% percent of American adults have indicated that they or someone they know have dealt with disputes due to poor or non-existent estate planning. Whether or not a will is left behind, the expertise of a probate attorney may be needed.  

Probate is not the only way to settle an estate in the United States.  Some assets, such as property, money held in a living trust, life insurance payouts, and retirement earnings may not be required to go through probate.  A good probate lawyer can help you determine what steps to take when settling an estate. 

Prepare and File All Probate Court Documents

Your attorney will know exactly which documents need to be filed with the court, and on what timeline.  If there are fees associated with filing court documents, they will ensure those fees are paid at the correct time. 

Prepare, Publish, and Deliver Written Notices

In some cases, written notices about the decedent’s death may need to be sent to beneficiaries or creditors.  For known creditors, direct contact is best.  If you suspect the decedent has unknown creditors, a public notification may be published in a local newspaper.  Your probate attorney can advise you on this matter. 

Locate and Collect Money Owed For Life Insurance Payouts

A probate attorney can help you determine if the decedent carried a life insurance policy, and if so, which beneficiaries are listed in that policy. 

Other Administrative Tasks

Here is a list of some other administrative responsibilities that a probate lawyer might take on:

• Open and oversee the estate’s checking account

• Calculate and pay property taxes 

• Calculate and pay inheritance taxes

• Pay remaining bills and debts

• Create an inventory of all assets and liabilities

• Secure appraisals of various assets

• Distribute assets among beneficiaries

• Retitle assets in beneficiaries’ names

Who Does a Probate Lawyer Represent?

Understanding who is responsible for what can be confusing but is important when unpacking how probate works.  Here is a quick vocabulary guide that may be useful:

• Testator - A deceased person who has left behind a valid will. 

• Executor - A person appointed by the testator to handle matters of the estate, as laid out in their will.

• Probate Attorney - A lawyer hired by an executor to help administer the estate. 

  • In cases where a person dies intestate, a probate attorney may be appointed by the court.

  • In some cases, a probate attorney is also hired by the beneficiaries or interested parties of an estate.

• Will - A legally valid document that outlines a person’s wishes for the distribution of their estate in the event of their death.

• Beneficiary - A person or organization who receives some benefit from a will, estate, trust, or insurance policy. 

• Trustee - A person or organization appointed by an individual who manages property
  (assets) held in trust, to be used in the future for the benefit of another. 

  • Example - A parent may set up a trust fund in their child’s name, which their child may not have access to until they reach a specific age.  If a parent appoints a bank as the trustee, the bank is responsible for managing the fund until the appointed time it becomes the official property of the beneficiary (child). 

Though the executor of the will is their client, probate lawyers also represent the decedent’s estate.  It is their job, and the job of the executor’s job, to ensure that the decedent’s wishes,  (as laid out in their last will) are enacted.

In complicated or contested cases, beneficiaries of a will, or interested parties who believe they should have been included in a will may also choose to hire their own probate or estate planning attorneys.  In such cases, the same probate attorney representing the estate should not also represent the beneficiaries or interested parties.  

When Does Probate Occur?

When does probate occur, and what does a probate timeline look like? 

The timeline depends on several factors, such as:

• If the decedent died testate or intestate.

• How complicated the terms of the will are.

• Whether or not any part of the will is being contested.

• Whether or not there are interested parties not unnamed in the will.

• How difficult it is to locate beneficiaries.

• How long inventory and appraisal processes take.

• How much debt is owed to creditors.

This list is not exhaustive. Other factors may also impact the timeline. 

Probate begins after a person’s death.  If the decedent left a will, you need to locate the document.  After the will has been recovered, make an appointment with the probate court in the county where the decedent resided.  Typically, the executor of the will (if there is one) is responsible for initiating probate by contacting the probate court.  Or if the executor has hired a probate attorney, that lawyer can initiate proceedings.  

If no will can be found, or if no will exists, a family member or interested party should make an appointment with the appropriate county probate court to open the estate.

In cases where a person has died intestate, administration of the estate falls under the jurisdiction of the county probate judge, who will distribute assets according to the state’s intestacy laws of succession.  As a general rule, intestate succession is more complicated than testate succession. 

As with most legal proceedings, there is no guaranteed timeline. Probate could take as little as three or four months, or as much as two years.  Fun fact: The longest-running case in U.S. history took around 60 years to resolve.  Of course, that is not the norm. 

What To Do If You’re a Beneficiary

If you are a beneficiary listed in someone’s will, it’s important to know your rights.  You should expect the executor or administrator of the will to notify you within 90 days of opening probate.  If you are the beneficiary of a trust, you should expect to be notified within 60 days of entering the will into probate.  You have a right to receive a copy of the will, and to be kept apprised of the case’s progress. If you do not receive a copy of the will, don’t worry!  Once the will has been filed with the probate court, it becomes a public document.  At that point, you can request a copy from the probate court in the decedent’s county of residence. 

Right to Have Your Best Interests Represented

As a beneficiary, you can request that the executor acts in your best interests, within reason.   Though they are legally required to carry out the terms of the will, they also have a fiduciary responsibility to maintain the property as wholly as possible.  For example, you should expect to receive fair market value for any assets sold before being divided and distributed.  If a specific item or dollar amount has been bequeathed to you, the executor is legally obligated to get it to you in a reasonable amount of time.  If you believe any part of your inheritance is being needlessly delayed or withheld, you can and should request an explanation from the executor. 

Right to Be Kept In the Loop

You have a right to receive ongoing updates and information about the status of the estate throughout the probate process.  A good executor will set expectations regarding the frequency of planned communications, so you know exactly what to expect going forward. 

Right to Request Removal of Executor

In contentious cases, beneficiaries can request to replace the executor.  It is not legal to do so because you dislike the executor or are unhappy with the will.  However, if you have a valid legal reason, you may petition the court to select a new executor.  Examples of valid reasons for having an executor removed include:

• Gross misconduct.

• Theft of decedent’s property.

• General mismanagement of the estate.

• Falsifying inventory and appraisal reports.

• Neglecting to keep records, or keep beneficiaries apprised of progress.

• Neglecting the fiduciary responsibility to sell property at market value.

• Mental or physical incapacity to perform the duties of an executor.

How to Find a Good Probate Attorney

If you have recently lost a loved one, and have been named as the executor of their will, give yourself the grace and space to go through the grief process without having to stress over the details of the probate process.  Hire a qualified probate lawyer, and trust that your duties as executor will be carried out honestly, efficiently, and to the letter of the law.  Not sure where to find the right lawyer?   We’ve done the research for you!  Check out Expertise.com’s directory and concierge service and find your probate attorney today!