What a Probate Attorney Does?

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What Does a Probate Attorney Do?

Probate Attorney: Inception of Probate Estate

Probate Attorney: Advisory Role Only

Probate Attorney: As Fiduciary (Executor/ Administrator/ Curator)

Probate Attorney: Dual Representation

Probate Attorney: Litigation (Probate, Will & Trust Beneficiary)

A Probate Attorney provides assistance, guidance and support for clients navigating the probate court process. The probate process is the judicial procedure by which a decedent’s probate estate is established and administered. The probate estate is the property subject to probate by the probate court. There are numerous ways to engage a Probate Attorney into representation.

In addition, the Probate Attorney also assists in non-probate related asset transfers and litigation associated with the beneficaries of probate, an estate or Trusts.

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Initially, consulting a Probate Attorney should be the first course of action. If a Probate Attorney is consulted at the onset, a proper determination can be made as to whether a formal probate estate needs to be opened. Frequently people unnecessarily open up a probate estate with the probate court because they failed to consult a Probate Attorney and ensure that the decedent’s assets were indeed probate assets. Consequently, because of their mistake, they incur significant legal expense and open themselves up to extreme liability (i.e., I.R.S.).

Probate Attorney Note

It is important to understand that the probate estate includes only those assets that are otherwise subject to probate. For a more detailed analysis of probate vs. non probate assets click the following Link Probate Attorney Blog.

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The Probate Attorney can serve in an advisory role only. The client would be appointed as the personal representative (executor, administrator or curator) of the probate estate. The client would be entitled to the probate fiduciary fee. However, the client would be subject to the liability that comes with being a personal representative. The Probate Attorney would be consulted and engaged, on behalf of the client personally, to complete work the personal representative doesn’t want to complete. 

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The Probate Attorney can serve as the personal representative (executor, administrator or curator) of the decedent’s estate. The Probate Attorney would assume the liability and responsibility for completing the estate administration. When serving as personal representative, the Probate Attorney fees would be the customary fiduciary fee by default. However, a Probate Attorney can agree to a different flat fee or be paid on an hourly rate. 

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Engaging a Probate Attorney in dual representation is the most common at our firm. As Probate Attorney, we can serve as either an Advisory or Fiduciary role as to the estate. In addition, the Probate Attorney may represent the beneficiary 9as a client) in their personal capacity (thus the dual representation). However, unless otherwise agreed to, the Probate Attorney doesn’t represent any other beneficiary but the client. 

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The Probate Attorney can represent parties in litigation involving probate, estates & trusts. Specifically, a probate attorney can defend or advance litigation associated with the following:

• a beneficiary dissatisfied with an estate Executor, Administrator or Trustee
• Will contests
• Trusts contests
• Asserting spousal or family rights
• Obtaining information about an estate or Trust

Many times an Executor/ Administrator or Trustee takes actions, or fails to take actions, that expose themselves to liability. That can happen intentionally or unintentionally. Beneficiaries, in order to protect their rights, often require a Probate Attorney to protect their rights.

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