Learn something new every day More Info... by email
A probate lawyer administers the last will and testament written by a client. A probate lawyer also guides heirs through the probate process in court. Finally, probate attorneys may act as the executor of the will, but this is not always required.
The probate process is the process by which assets are distributed in the U.S. when a person dies with a will. If a person dies with a will, he or she names beneficiaries who will receive his assets. The person writing the will also names an executor to handle the distribution of assets.
When someone with a will dies, the probate process begins. This is the process in which the assets are distributed according to the tenants in the will. A court of law oversees the probate process to ensure that the wishes of the deceased party, also called the decedent, are carried out.
A probate attorney represents the executor of the will and/or heirs in court. The probate lawyer will facilitate the legal process, filing any necessary motions and pleadings. The probate attorney will also make arguments to a court in the event that a will is contested, or in the event that the court has questions about the validity of the will.
Often, a decedent will name his probate attorney as the executor of the estate. If this is the case, the probate lawyer also manages the physical distribution of assets. This can involve helping to change the title on property, or helping to move assets into the name of the person who inherited them.
If a probate lawyer is named as the executor of the will, he or she is usually paid a nominal fee to oversee the distribution of assets. This fee may be a flat fee, or may be based on a percentage of the estate. The fee for serving as the executor of a will is separate from the fee for preparing a will.
Probate attorneys, like wills and trusts attorneys, are not permitted to be beneficiaries in the will. This means a probate attorney cannot be named in the will, and cannot inherit any assets. Ethical rules dictate this in order to ensure that there are no conflicts of interest.
A probate attorney has an ethical duty to represent the wishes of his client. If his client is the decedent, he must represent the wishes of the decedent. He can also be hired by people who inherit money in order to facilitate the probate process.
@Logicfest -- The best thing a lawyer can do is to make sure a probate fight can't pop up in the first place. How? When someone comes in to make out a will, set up a good old trust instead. Meanwhile, an attorney can advise his or her client to make all financial accounts "payable on death" to beneficiaries.
If all assets are in a trust or are to be distributed to people on the death of someone, then there will be no assets to probate and that will keep fighting to a minimum.
If there is a fight, at least it won't take place in a lawyers office where survivors are shrieking at each other.
It might be surprising to hear, but probate law is one of the nastier areas in which an attorney can choose to function. When someone dies people fight over money and assets and those fights can get nasty in a hurry.
An attorney who handles the probate process can get pulled into the middle of those fights in a hurry. Those situations are uncomfortable at best, dangerous at worst.
One of our editors will review your suggestion and make changes if warranted. Note that depending on the number of suggestions we receive, this can take anywhere from a few hours to a few days. Thank you for helping to improve wiseGEEK!