A probate lawyer is a state-licensed legal professional whose job is to guide the executor of a will, or the beneficiaries of an estate, through the probate process. Probate lawyers can also fulfill other duties and assist in the creation of an estate plan long before the probate process comes to pass.
To understand what a probate lawyer does, and why you might need one, it is first important to understand the probate process.
Understanding the Probate Process
Probate begins when the executor or appointed representative of a deceased person’s estate brings their death certificate to the local courts. In general, an estate should be probated in the county in which the decedent lived.
Exceptions are made in cases where a decedent owned or co-owned property in other states – in these cases, you will have to open ancillary probate processes in those respective states to merge back into the main probate process. This is one of the tasks a probate lawyer can assist with.
The probate process itself revolves around determining the legitimacy of the will, recognizing the will (if one exists), and supervising the valuation of the estate, resolution of the estate’s remaining debts, and dissolution of the estate via distribution to its respective beneficiaries.
If a will exists, the executor named in the will is made responsible for the management and distribution of the estate’s property. If no executor is named, the probate courts name one – usually choosing the most competent or readily available next of kin.
In the absence of a will, the probate process utilizes the state’s respective intestacy laws as a guide for succession and inheritance – while these laws differ from state to state, the rule of thumb is that the spouse gets half of all separate property, the remainder of all co-owned or community property, and the rest goes to the kids.
In the absence of children and parents, the spouse inherits everything. In the absence of a spouse and kids, the estate is split between the next of kin, in order of relation (parents, siblings, grandparents, aunt/uncles, cousins). If there is truly no one left to inherit, the estate is eschewed by the state until someone is found.
However, long before an estate can be distributed among its beneficiaries, there is a laundry list of probate errands to tackle first, beginning with the notifying of specific creditors, and the publishing of a public notice of probate (usually in a local paper). Most probate processes can last anywhere from six months to well over a year, depending on the size and complexity of the estate, and the probate rules of the respective state. Some states have longer probate waiting times than others.
In California, creditors have up to four months from the date a letter or notice was issued to them by the estate’s executor and sixty days from the mailing date/serving of a notice of administration.
In addition to satisfying debts and creditors, the executor of the estate must also pay for the rest of the decedent’s final bills and expenses, as well as their final tax return (unless they are survived by a spouse, and file jointly).
Before it can be distributed, an estate must also be formally valued. Estate valuation is crucial for determining an estate’s potential federal and/or state estate taxes, as well as determining the fair market value of each item of the estate at the point of death for potential inheritance tax calculations.
In addition to valuation, the executor must ensure that they have taken proper inventory of the entire estate and must continue to manage the estate’s assets (either themselves or by paying others through the estate) until all assets are distributed.
Only after an estate’s debts and other executor responsibilities have been satisfied can it be properly distributed (unless a creditor misses their deadline).
What a Probate Lawyer Does for You (It’s Not Just Probate)
In addition to guiding you through the probate process, a probate lawyer can work with you (or the executor) to take over many of the logistical tasks associated with managing an estate, from finding and inventorying assets to assigning value to them via professional valuators.
A probate lawyer’s services might end with the dissolution of an estate, but they don’t necessarily begin with probate. You can hire a probate lawyer or estate planning professional to help you set up your own estate plan from day one. This includes wills, trusts, guardianship, living wills, powers of attorney, and other important documents.
What Does a Probate Lawyer Cost Me?
Fees for a probate lawyer’s services during the probate process itself depend on the state and the size of the probate. In many states, probate lawyers charge a flat fee, or a charge by the hour. In California, probate fees can be calculated as a percentage of the probate’s total value, as follows:
- 4 percent for the first $100,000
- 3 percent of the next $100,000
- 2 percent of the next $800,000
- 1 percent of the next $9 million
- ½ percent of the next $15 million
- a “reasonable amount” for estates valued over $25 million
Other services, such as setting up and managing a trust, will command different fees.
Do You Need a Probate Lawyer?
Smaller estates can be managed easily with little formal help. You can still enlist the services of a probate lawyer at a low cost to help ensure that the process goes smoothly, and to take some of the burden of managing a loved one’s final affairs in the middle of the grieving process.
The more complicated an estate gets, the more vital the services of a probate lawyer become.
Can You Eliminate the Probate Process?
While your estate must pass through probate upon death, there are exceptions to what must pass through probate. Examples of things that can bypass probate and go directly into the hands of your beneficiaries include:
- The contents of a living trust
- Life insurance payouts
- Retirement account remainders
- Bonds, stocks, and other financial instruments with designated beneficiaries
- Vehicles and properties with transfer-on-death deeds
- Accounts that are payable-on-death
You can utilize trusts and beneficiary designations to minimize the value of your probatable estate and expedite it. In California, the threshold for filing a small estate affidavit to speed up the probate process is $150,000.
An estate planning professional can not only help you work through the probate process, but can also advise you on how to set up an estate plan that makes the most of what you have, minimizing your administrative and tax costs, and speeding up the inheritance process for your loved ones.