A will guides your family in the unfortunate case of your passing. Merely drafting a will is not sufficient. You need to ensure that it is deemed valid and upheld adequately to serve its whole purpose. Some lawyers specialize in both wills and probate who help, but what do lawyers do with wills?
What Is a Will?
A will is a legally binding document that will clearly state how to divide your possessions after your passing. It is essential to have a valid will in place because it will help settle familial disputes and ensure the care of your children is not a decision that gets left in the hands of the courts.
Ensuring your will is valid helps your family to clearly define your asset distribution while avoiding the unfortunate circumstances of your possessions falling into the wrong hands.
What Is a Wills and Probate Lawyer?
Often you will find that one lawyer will handle both wills and probate, but it is not a guarantee. Make sure you check with your lawyer first to ensure that they can handle both properly.
What Is a Wills Lawyer?
A will attorney is a lawyer that specializes in the creation of your will. There are various types of wills, but typically there are four that stand true in a court of law. A wills lawyer will help you in the creation of one of the following types of wills.
Simple Wills
A simple will is a straightforward document that does not always require legal assistance. There are plenty of legal services offered online to assist you with creating a simple will, although it is still best to verify the document with a wills lawyer.
A simple will is what most people associate with the word “will,” and it covers the dispersion of your assets as well as names any guardians for minor children.
Testamentary Trust Wills
In a testamentary trust will, some or all of your assets will be placed into a trust for your beneficiaries. In this document, you will clearly define a trustee who will handle the trust.
A testamentary trust will is a useful option if you have minor children who do not want to inherit and handle your assets on their own. You can put conditions on the inheritance, including dispersion gradually as they age.
Joint Wills
A joint will, also known as a mirror will, is signed by two or more individuals but acts as a separate will for each person involved. Essentially, these documents are created by spouses for the other spouse to inherit everything upon their passing.
Typically, joint wills are known for being inflexible and, as a result, can become difficult as the wishes of the surviving spouse may change over time.
Living Wills
A living will is unlike the others in that it has nothing to do with your assets’ dispersion. A living will is a document clearly stating what medical options you will choose in case of incapacitation.
You may also name someone in your living will make your medical decisions on your behalf if you are unable to. A living will usually exist alongside another type of will as it covers completely different items.
What Is a Probate Lawyer?
A probate attorney, also known as an estate attorney, is a lawyer that specializes in assisting families with following through on the requests of your will. Probate lawyers will guide executors of wills, or beneficiaries of an estate, through the entire process from identifying assets to distributing them properly.
You can avoid probate in certain circumstances where you place your assets in a trust. Trusts can help ensure smoother transfers of property that occur outside of courts and away from legal proceedings.
What is Probate?
Probate is the name given to the legal process that occurs following the death of an individual. In this process, the courts will distribute the deceased’s possessions as they deem appropriate and payout any existing taxes or debts owed at this time.
If there is a written will at the time of death, the courts will ultimately verify its validity and then follow the actions as clearly defined in the terms.
What Does a Probate Lawyer Do?
The level of involvement of probate lawyers is dependent on individual circumstances within your estate. Primarily, your estate’s value and whether you have a will in place will determine what the probate lawyer will handle.
More specifically, some of the responsibilities of a probate lawyer include:
- Collect proceeds from life insurance policies
- Identify and secure estate assets
- Obtain appraisals for real property
- Assist in paying bills and debts
- Prepare and file all required documents
- Determine if the estate or inheritance taxes are due and paying them if necessary
- Resolve income tax issues
- Manage estate’s checking account
- Transfer assets to appropriate beneficiaries
- Make final disbursement of assets to beneficiaries once all debts have cleared
Related: What is an Estate Lawyer and What Do They Do?
How Do I Know if I Need a Wills and Probate Lawyer?
It is crucial to have a will at any stage in life for the simple fact that accidents can happen. Regardless of your age or current health status, there are uncontrollable variables that can lead to sudden fatality. Since you want to make sure that your will is a valid, legal document, you will need an attorney’s assistance.
While you may want to handle the drafting on your own, you should at least seek out legal guidance once you have completed one to ensure that it is legally sound. The last thing you want to happen is for you to take the time to carefully write out a will that does not hold up in court.
A probate lawyer will be responsible for upholding everything in your will, as you won’t be able to do it yourself. If you have found an attorney that does not cover probate, you should be sure to seek out additional help from a probate lawyer to make sure everything is cohesive.
Additional Assistance
If you anticipate your estate exceeding $5,120,000, you want to be sure to contact an attorney for alternative estate planning options. As of 2012, the filing estate tax is required over that amount.
How Much Does a Wills and Probate Lawyer Cost?
As to be expected, billing options vary amongst wills and probate lawyers. Usually, the fees for preparing estate plans are much lower than the execution of the same probate plan.
Wills Lawyer Costs
Typically, you will find that attorneys will charge a flat rate to either draft or revise a will because they generally take the same amount of time.
For a simple will, the lower range cost would be a flat rate of $300. However, with more complex wills or estates, a flat rate of $1,000 is more commonly seen. In highly complex cases, it is easy for rates to exceed $1,200.
Probate Lawyer Costs
For probate, it is most common for lawyers to charge on an hourly rate or by a percentage of the estate they are handling. Probate is known to be a long and tiresome process, so rates will vary significantly based on the complexity and your geographical location.
A typically hourly rate for a probate lawyer would be around $250 to $310. In terms of percentages, certain jurisdictions clearly state how much probate lawyers are allowed to charge. For example, in California, some laws explicitly detail a portion of fees as follows:
| Percentage | Estate’s Value |
| 4% | First $100,000 |
| 3% | Next $100,000 |
| 2% | Next $800,000 |
| 1% | Amounts > $1 million |
What Should I Expect From a Wills and Probate Lawyer?
The purpose of hiring a wills and probate lawyer is to follow a general timeline that looks like this:
- Create your will
- Approve your will as a legally binding document
- Appoint your probate lawyer
- Upon your passing, all wishes carried out as intended
FAQ – What Do Wills and Probate Lawyers do with Wills?
When you hire a wills and probate lawyer, or a probate lawyer, they will hold onto your original will for the simple fact that it will be simpler for them to access it when needed. With this common practice comes a series of questions. Since it is always important to educate yourself, we’ve condensed this into FAQ of wills and probate lawyers for you.
How Long Do Lawyers Hold Wills?
The short answer is indefinitely. The exercise of hanging onto original wills and how they are handled is likely to vary from practice to practice. Still, generally, you will see this answer unless there is a specific client agreement stating otherwise.
Do Probate Lawyers Keep Track of When People Die?
Lawyers have no obligation to search death records for all of their clients to determine whether they have passed away. If lawyers happen to find out about a client’s death and have not been retained to assist with probate, they must file the will with the probate court within 30 days of the death.
What Happens to Original Wills When Probate Lawyers Retire or Die?
If the retiring lawyer is a part of a larger firm, the original will stays with the firm. Ultimately, if your probate lawyer has retired or died, their staff should be in charge of mailing the original documents back to you as needed.
What If I Want to Save Money or Do Not Want to Work Directly With a Lawyer?
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Emily is a professionally trained freelance writer who covers a wide range of topics but specializes in business, law and hospitality content. With over a decade of professional writing experience in the hospitality industry, Emily comes from a strong background in the field backed with a BS from the world-renowned William F. Harrah College of Hospitality at UNLV. When she is not spending her time freelance writing, Emily enjoys growing her social media skills and spending time with her rescue puppy. Find out more about Emily’s extensive background or reach out directly at www.linkedin.com/in/Emily-Kho.
