What Does A Probate Lawyer Do

What Does A Probate Lawyer Do

What Does A Probate Lawyer Do

Probate law is probably not something you hear about very often as it does not have a high profile like some other areas of the law. A probate lawyer does, however, play an essential role as they assist and advise in settling affairs for a deceased person. A probate lawyer is licensed by the state and they can also be called estate attorneys. An attorney means a lawyer who has been appointed to act for someone else in legal matters. Probate lawyers are also called estate lawyers. When people set up a will, they nominate an executor or executors, also known as personal representatives, to oversee their wishes. A probate lawyer will provide advice to executors. They can also advise estate beneficiaries regarding how to settle the deceased person affairs. The probate process can be pretty complicated, and a probate lawyer can assist executors by taking them through the whole probate process.

What Does A Probate Lawyer Or Probate Attorney Do?

Probate laws can be pretty complex, and they vary from place to place. The variances mean that sorting an estate can be difficult if the deceased owned property in different states. A probate lawyers’ job is to have an in-depth knowledge of probate law and the probate process, and due to this, they can assist in lawfully settling estates. 

A probate lawyer, also called a probate attorney, understands the steps required, and these will differ depending on whether the decedent died with a valid last will and testament. The steps required for settling an estate will differ based on whether the decedent died testate—with a legal last will and testament (testate) or without one (intestate). When a person dies intestate, a lawyer must know the state probate rules well as they come into play more significantly when there is no will.

A last will is a legal document stating how you would like your property and assets to be distributed. It generally names who you would like to be the executor of your will, and this person will be in charge of moving your estate through the probate process.

A probate attorney will know the probate process for both situations, testate and intestate and will be able to assist impartially with estate administration.

A probate lawyer can assist in:

1. Asset Collecting – The executor of the will may need assistance in locating and securing probate and non-probate assets and working out the value of the assets at the date of the death.

It is the executor’s role to collect the proceeds of life insurance for the deceased, plus sort out finances tied up in retirement plans. An attorney will assist with this as well as identify and ensure estate assets are secure.

A lawyer will complete the paperwork needed to retitle real estate and other assets so that the executor can distribute them.

They can:

a. Get an appraisal for the property

b. Assist the executor in organising the payment of bills and debts.

2. Finance Handling – Can be supplied by the probate lawyer concerning the payment of the deceased final bills and any outstanding debts. They will collect, collate and file all the documents the court requires.

A probate lawyer can oversee the estate’s checking account and work out any estate and inheritance taxes and outstanding income tax. These taxes are required at state and federal levels.

They can also:

a. Ensure assets are transferred into the decedent’s name and that they have gone to the appropriate beneficiaries.

b. Make final payments to beneficiaries once all the bills etc., have been paid.

3. Disputes – Any disputes between the executor and the beneficiaries will be settled by the probate lawyer. They can help with estate property sale and make requests from the court relating to the property sale.

The executor can hire a probate lawyer to guide them as they undertake the process. Those who are beneficiaries can also hire a probate lawyer to guide legal matters relating to the will. These circumstances are more likely to occur if the beneficiary does not agree with the executor or if there are trust issues.

Estate Litigators

There are probate lawyers who specialise in estate lawsuits where beneficiaries challenge a will’s validity. These lawyers are called estate litigators, estate and trust litigators or probable litigators. The term litigator means a lawyer who specialises in taking legal action.

Do You Need A Lawyer?

Do you need a probate lawyer? Much of what has to be done by an estate executor is common sense and does not need you to have completed a law degree. However, there are more complex estates, and even in more straightforward situations, there are potential potholes and problems. There are also many emotions tied up in the death of a loved one, and having someone involved who is not related can provide calm and a voice of reason. It is tough for representatives who are grieving to undertake some of the tasks required. The death of a loved one plus the sharing of assets can bring even the most agreeable of families to blows. Gaining advice and assistance from a probate lawyer can simplify the process even in a case that does not appear problematic. In a complex case, engaging a probate lawyer is invaluable. When the executor and beneficiaries are at odds, obtaining a probate lawyer is advisable as it is in cases where there are complex assets, business interests, or insufficient funds to cover debts. So though you may not feel you need to hire a probate lawyer to seek legal advice, it will help protect the rights of the beneficiaries the deceased has selected. 

You do not have to hire a lawyer for the whole process as that could be quite expensive. You may be able to find someone who will bill at an hourly rate for the work they undertake.

Questions To Ask

When selecting a probate lawyer, you want to ensure that you choose one you are happy with. You could consider asking questions like:

  1. How long have you been practising probate law?
  2. Have you had experience with similar cases?
  3. Is this what you regularly do?
  4. What potential issues do you think might come about?
  5. How long do you think it might take to complete the case?
  6. How much is a probate lawyer fee?


When someone passes away, their belongings (assets) need to be distributed. This job must follow the state laws and the directions provided by the deceased in their will. An executor can seek the assistance of a probate lawyer to assist in the process. Beneficiaries can also gain assistance with the process and tend to do so if they are unhappy with proceedings.

Frequently Asked Questions

1. Is an estate attorney the same as a probate lawyer?

Answer: Yes, these terms can be interchanged.

2. Do all deaths lead to probate?

Answer: No, all deaths do not have to go to probate. If everything is jointly owned, it will pass to the partner.

3. How do I know I can trust an executor?

Answer: You have to trust that the deceased chose wisely. The fact is that the executor cannot take from the will unless they are the estate beneficiary. They will not necessarily benefit from being the executor of the will at all.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Probate or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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