Probate Attorney

A probate attorney is a legal professional who can help settle a deceased person’s estate, assisting family members in navigating the probate process.

When a family member dies, their estate may need to go through the probate process, which involves a probate court ensuring that the estate assets are distributed to beneficiaries and that debts and estate and income taxes are paid. A probate attorney, who is familiar with probate law, can be hired to help with the probate process.

• Probate attorneys, also known as probate lawyers, can:
• Identify and pay estate and/or inheritance taxes
• Manage estate bank accounts
• Arrange for estate property appraisals
• Navigate probate litigation, if there are disputes or creditor claims during the probate process
• Distribute assets to designated beneficiaries according to the decedent’s will or state intestacy laws

Get probate assistance with LegalZoom’s experienced probate attorneys.

How a probate attorney works

When someone dies, their estate typically passes through probate, a legal process the court oversees. A probate attorney advises the executor or administrator through each stage:

1. Filing the petition. The attorney opens the estate with the probate court and arranges the executor's formal appointment.
2. Inventorying assets. The attorney identifies and values the decedent's property, including real estate, bank accounts, and personal property.
3. Notifying creditors. They also ensure creditors receive legally required notice so they can submit claims against the estate.
4. Paying debts and taxes. The attorney advises on settling valid debts, filing final income tax returns, and addressing estate tax obligations.
5. Distributing assets. The attorney transfers remaining assets to beneficiaries per the will or, if no will exists, under state intestacy laws.
6. Closing the estate. The attorney prepares final accountings and files documents to formally close the proceeding.

Why a probate attorney matters

Probate involves court filings, legal deadlines, creditor negotiations, and asset transfers, all subject to state-specific rules. Errors can expose an executor to personal liability or delay distributions to beneficiaries.

A probate attorney ensures filings stay accurate and timely, creditor claims receive proper evaluation, and the estate proceeds in compliance with applicable law. Even straightforward estates can involve complications such as disputed claims, missing heirs, or assets in multiple states.

Common uses

A probate attorney's role extends beyond routine estate administration, and their involvement is most common and most consequential.

• Contested wills. Represents the estate or a contesting party when a will's validity is challenged in court.
• Intestate estates. Helps a court-appointed administrator distribute assets when the decedent left no will.
• Real property transfers. Prepares legal documents to transfer title to heirs or buyers.
• Creditor disputes. Challenges invalid creditor claims on behalf of the estate.
• Out-of-state assets. Coordinates ancillary probate proceedings when the decedent owned property in multiple states.

Probate attorney vs. estate planning attorney

An estate planning attorney prepares documents such as wills, trusts, and powers of attorney during a person's lifetime. A probate attorney administers the estate after death and executes those plans through the court system. Many attorneys practice in both areas, but if a loved one has recently died, a probate attorney is the appropriate professional to engage.

Considerations

Before hiring a probate attorney, it helps to understand how fees work and when full probate is actually necessary. These factors shape both cost and timeline.

• Fee structures vary. Attorneys may charge hourly rates, flat fees, or, in some states, a statutory percentage of the estate's gross value. Clarify the fee structure before hiring.
• Not all estates require full probate. Many states offer simplified procedures for small estates or allow certain assets to pass outside probate entirely.
• Timing matters. Most states impose deadlines for filing probate petitions. Delays can result in missed deadlines and added complications.
• Estate planning reduces probate complexity. Assets in a living trust, jointly owned property, and accounts with named beneficiaries typically bypass probate.

Related terms

A probate attorney works alongside several other legal roles and documents. These terms provide useful context for understanding how the attorney fits into the broader estate process.

• Medical power of attorney. A document that designates someone to make healthcare decisions during a person's lifetime, separate from but complementary to a will.
• Legal notice. A formal notice the court requires during probate to inform creditors and interested parties of the estate proceeding.

FAQs about probate attorney

When should an executor contact a probate attorney?

As soon as possible after a death. Most states impose filing deadlines, and an early consultation clarifies whether full probate, a simplified procedure, or no court involvement applies.

Can an estate avoid probate entirely?

Assets in a living trust, jointly owned with right of survivorship, or with named beneficiaries typically pass outside probate. However, if any assets remain solely in the decedent's name or disputes arise, a probate attorney may still be needed.

Who does a probate attorney represent?

A probate attorney either represents the estate itself (if they are also the executor) or the executor of the estate, the person named by the testator to help manage their property when they die and distribute assets according to their will. In this case, the probate attorney helps the executor with their duties, ensuring that the estate is settled appropriately. 

Do you need a probate attorney if you don't have a will?

You don’t necessarily need a probate attorney if there is no will, as the decedent’s assets will be overseen by a probate judge and distributed according to state intestacy laws. This is known as intestate inheritance. However, whoever the state appointed as the estate’s personal representative may want to hire a probate attorney who can guide them through the legal process.