What is a probate lawyer and how to find the right one for you

A probate lawyer, sometimes also referred to as an estate attorney or a trust lawyer, plays a crucial role in the process of estate management and distribution after a person's death. These specialized legal professionals can assist executors of the estate (or administrators if the deceased did not leave a will) in navigating the complex journey through probate—the court-supervised procedure used to validate a will, settle debts, and distribute assets to heirs. If planning takes place before one passes they can also give individuals insights into how to avoid probate altogether. 

Probate lawyers are well-versed in the laws governing estate and trust administration, offering indispensable guidance through the myriad legal intricacies that can arise during probate. Their expertise encompasses a range of tasks: from helping to draft and file necessary court documents, to representing the estate in probate court proceedings, and even assisting in the resolution of disputes between beneficiaries or between beneficiaries and the estate.

Moreover, probate lawyers provide valuable advice on the collection, valuation, and taxation of the estate’s assets, ensuring that the executor’s actions comply with legal and fiduciary standards. They also can offer counsel on the payment of the decedent's debts and taxes, and the distribution of the estate's net assets.

In essence, a probate lawyer serves as a guide through the often complex probate process, ensuring that wishes of the deceased are honored, legal protocols are followed, and the interests of the beneficiaries are protected. Whether dealing with a straightforward estate or one fraught with potential disputes and complexities, the assistance of a probate lawyer can be crucial to ensuring a smooth and efficient resolution.

Why you might need a probate lawyer

Navigating the intricacies of probate law often requires the expertise of a seasoned probate lawyer, particularly in circumstances that involve complex estates or potential disputes among heirs. The probate process can be daunting, with its various legal requirements. A probate lawyer can provide the necessary guidance and support to ensure that an estate is settled smoothly, by proper legal procedures,  and in accordance with the decedent’s wishes as well as give valuable insight into the success rate of contesting a will. Their role becomes crucial in situations where the will is contested, the estate involves substantial assets or debts, or there are complications related to the distribution of the estate to heirs and beneficiaries. They can also assist in situations where the estate spans multiple jurisdictions, requiring a deep understanding of different probate laws. A probate lawyer’s expertise is invaluable in guiding anyone through the process however simple or complex after the passing of a loved one. 

Contested vs Uncontested Probate

A probate lawyer is instrumental in navigating both contested and uncontested probate cases. For testate estates, where a will is present, they ensure the decedent’s wishes are honored while managing any disputes. In cases of intestate estates, where no will exists, they guide the distribution of assets according to state laws. Their expertise is vital in contested probates, where they resolve disputes over the will's validity or its terms, and in uncontested probates, they streamline the legal process, making the administration of the estate as efficient as possible.

The success rate of contesting a will or an estate varies depending heavily on the case's specifics, such as the evidence of undue influence, testamentary capacity, or procedural errors. While no guarantee exists, a skilled lawyer can significantly improve the chances of a favorable outcome.

Cost to Hire a Probate Lawyer

Hiring a probate lawyer can vary significantly in cost, influenced by the complexity of the estate and the billing structure chosen. Fees can be structured in several ways: a flat fee for straightforward cases, an hourly rate for more detailed work, or a percentage of the estate's value. The simplicity or complexity of the probate process plays a critical role in determining the overall cost. In uncontested probates, where the will is clear and all parties are in agreement, a flat fee and fewer hours needed from a probate lawyer may keep costs on the lower end, reflecting the streamlined nature of the process. However, for contested probates or those involving complex assets, litigation, or disputes among heirs, the costs can escalate significantly. In these instances, lawyers may opt for hourly billing or a higher percentage of the estate's value, reflecting the increased time and expertise required to navigate these challenges. It's crucial for individuals to discuss fee structures and expectations upfront with a probate lawyer to understand the potential financial implications fully and to understand the success rate of contesting a will or an estate for their specific situation. 

How to Avoid Probate

An attorney can play a crucial role in helping individuals learn how to avoid probate, saving time and money for clients while ensuring a smoother and more direct transfer of assets to beneficiaries. Through comprehensive estate planning, before an individual passes, attorneys can devise strategies tailored to each client's unique circumstances. One common approach is the establishment of a living trust, where assets are held and managed by a trustee for the benefit of the named beneficiaries, bypassing probate upon the grantor's death.

Attorneys also advise on the importance of properly designating beneficiaries for retirement accounts, life insurance policies, and other financial instruments. This direct assignment can effectively circumvent the probate process, as these assets do not become part of the decedent's estate but are instead directly transferred to the named beneficiaries.

Additionally, attorneys can facilitate the arrangement of joint tenancy with the right of survivorship for real estate, which ensures that property is automatically transferred to the surviving owner(s) without the need for probate.

While a probate lawyer cannot provide an absolute guarantee of avoiding the probate process, they possess the expertise to employ tactics that significantly increase the likelihood of bypassing it.

Find the Right Probate Lawyer for Your Needs

Our experienced probate lawyers at Woodbury & Ybarra can help you navigate the complexities of probate and estate planning with confidence. Our team specializes in crafting comprehensive estate plans and providing expert assistance in probate matters. Whether you need help with drafting a will, establishing a trust, or navigating the probate process, we're here to provide personalized guidance and support every step of the way. Contact us today to schedule a consultation and take the first step toward securing your financial future and protecting your loved ones' legacy.