8 minute read

What is a Probate Attorney - A Complete Guide

Did you know a probate attorney isn’t always necessary to settle an estate? We’ll explain why in our comprehensive guide.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

If needed, probate begins soon after you lose a loved one. Probate is a legal proceeding validating a Will (in cases where the decedent has one) to settle an estate. If the decedent passes away without a Will (or other Estate Plan in place), it’s said he or she died intestate, and the estate would go through probate in this instance, too. 

[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs. Learn more.]

Probate can be long, arduous and stressful...not to mention expensive and time consuming. Navigating it on your own can feel like just too much after losing your loved one. 

You might find that you don’t need a probate attorney, but if you’re considering hiring one, this guide will help you figure out everything you should know. From what an estate probate attorney fee typically is, to what does a probate attorney do, we answer all your questions. We’ll cover:

Looking to understand the ins and outs of probate? Check out our full guide to What is Probate for a complete breakdown. 

What is a Probate Attorney  

A probate attorney is a state-licensed lawyer who can help the Executor of a Will (if one was appointed) or the beneficiaries of an estate get through probate as they work to settle an estate. Their services could typically include everything from finding and inventorying assets of the estate, to understanding and paying all the debts the estate may have, to distributing and settling the estate, and more.  

Probate attorneys are qualified to help with the actual Estate Planning process too, although they tend to charge a high fee for the basics like setting up guardianship, creating a Will or writing a Trust. Online companies like Trust & Will make personalized Estate Planning easy, convenient and affordable, all without the involvement (and cost!) of an outside attorney. 

The range for a probate attorney fee will vary, as they can charge either by the hour or a flat fee, and in some states, fees can be determined by the size of the estate. 

States that allow a percentage of value fee include:

  • Arkansas

  • California

  • Florida

  • Iowa

  • Missouri

  • Montana

  • Wyoming

For example:

  • In California, fees are

    • 4% for the first $100,000

    • 3% of the next $100,000

    • 2% of the next $800,000

    • 1% of the next $9m

    • ½% of the next $15m

    • a “reasonable amount” for estates valued over $25m

  • In Florida, fees are: 

    • $1,500 - $3,000 for estates ranging between $40,000 to under $100,000

    • 3% for estates valued $100,000 - $900,000

    • 2.5% for estates valued $1m - $3m

    • 2% for estates valued $3m - $5m

    • 1 ½% for estates valued $5m - $10m

What Does a Probate Attorney Do? 

Also known as a probate lawyer, probate attorneys are hired to help settle an estate. After the death of a loved one, their Estate Plan dictates the next steps. If they have a Will, probate will be necessary. Trusts won’t go through probate, which can sometimes make the process a bit less complicated and much more private. But even if there is only a Trust involved (and not a Will, thus no probate), a probate attorney could still help the Trustee administer the Trust.

Who does a probate attorney represent? Probate attorneys generally either represent an heir to an estate (a beneficiary) or the personal representative or the estate itself. Though it rarely happens, they can occasionally play more than one role.  

A probate attorney can accomplish many things to settle an estate and assist the Executor and beneficiaries, including:

  • Collecting life insurance policy proceeds

  • Determining and paying inheritance taxes

  • Figuring out and paying estate and income taxes that may be due

  • Identifying all estate assets

  • Making final distributions after paying all bills and taxes

  • Opening and managing the estate’s checking account

  • Ordering property appraisals for real property

  • Paying debts and final bills

  • Preparing and filing all court documents

  • Retitling assets in beneficiaries’ names

Do I Need a Lawyer for Probate? 

Whether or not you need a probate lawyer will depend on multiple factors and scenarios. You’ll want to consider things like:

  • How complicated are your state laws? 

  • What type of Estate Plan did the decedent set up? 

  • Did they have a Will? A Trust? Both? Nothing at all? 

  • What is the size of the estate? 

  • Are there any contentious beneficiary relationships? 

  • How complicated are the assets and beneficiary designations? 

All of these considerations will play into your decision on whether or not you need experienced, trusted help.

If the decedent had just a Will, there’s no way around it: you’re going to have to deal with probate. So the next logical step is to evaluate how complicated the estate is, and thereby how difficult probate will be. Obviously, the more complicated an estate is, the more alluring an attorney may seem. If the decedent had a well-set up Trust in place, on the other hand, a probate attorney may not be necessary at all.  

So, can you go through probate without an attorney? In short, yes. However, while you can often manage the process of probate on your own, sometimes, an estate is complicated or big enough to consider retaining one. If this is something you don't want to go through alone, consider getting help from our probate experts. They offer unparalleled support and guidance to simplify the probate process.

Questions to Ask a Probate Attorney

If you do end up using a probate attorney, there are a few things you should know before retaining one. Asking questions up front will ensure there are no (costly) surprises along the way. Use the following list to help you find an attorney who will be the right fit for your exact needs. 

"How long have you been practicing probate law or doing Estate Planning?"

Obviously, the longer he or she has been in practice, the more experienced they will be in getting the job done for you quickly and efficiently.

"Do you practice any other areas of law?"

An attorney may be able to take on probate cases, but might more regularly practice an entirely different area of law. If they are not experienced in the nuances of estate law, you could end up paying the price, both literally and figuratively, as costly and timely delays could result from their inexperience. 

"Have you practiced before the court my case will be assigned to?"

Judges and counties will have their own slight variation of rules and unique ways of proceeding. Finding a probate attorney who’s familiar with a judge’s preferences can make the process a lot smoother. 

"How long do you estimate my case will take before the estate will be settled?"

This one can widely vary. It’s not often that a probate case takes years, but it’s been known to happen. The longer things drag on, the more expensive they can become - knowing ahead of time how long your attorney estimates the process to be can be helpful (particularly if they will be charging you hourly). Keep in mind, there can be unanticipated delays that arise. 

"Have you handled cases similar to mine in the past? "

Especially if your case is complicated, or if the estate is very large, it can be useful to know what your attorney’s experience is. This might be the most important question you ask. 

"What are your fees?"

Make sure you have a concrete understanding about fees. Will he or she charge a flat rate? A percentage based on the estate value? Hourly? 

Whether or not to hire a probate attorney depends on a variety of elements. You want to consider how comfortable you are navigating probate, how complicated your state laws are and how big or extensive the estate itself is.  

There are certainly some horror stories associated with probate court. But those circumstances can be avoided when you’re properly protected. Luckily, Trust & Will is here to help with any and all of your estate planning needs. Not sure whether a Will or Trust is right for you? Take our simple quiz designed to help identify your perfect plan.