A probate attorney helps an Executor manage the legal and administrative responsibilities involved in settling an estate. This can include opening the estate with the court, preparing and filing documents, addressing creditor claims, managing estate assets, and assisting with distributions to beneficiaries.
Hiring a probate attorney can also save an Executor significant time, help reduce the risk of costly mistakes, and provide guidance throughout the probate process.
Whether you have just lost a spouse or a parent, believe you may be entitled to a part of an estate, or just received a letter from the court announcing you as an Executor of a family member's estate, you could probably use some help. It’s often a challenge to know where to start in the probate process, and maybe you’re unsure what questions to ask, whom to ask, or if you're getting good advice and doing it right. An estate administration attorney, also called a probate attorney, assists the Executor with all their responsibilities.
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| WHAT A PROBATE ATTORNEY HELPS WITH | WHAT THAT MAY INCLUDE | WHY IT MATTERS TO THE EXECUTOR |
|---|---|---|
| Opening the estate | Preparing documents needed to open the estate and helping the Executor obtain formal court appointment | The Executor generally needs proper authority before managing or distributing estate assets |
| Court filings and deadlines | Preparing and filing probate documents and communicating with the court throughout administration | Helps reduce filing errors, missed requirements, and avoidable delays |
| Creditor claims and estate debts | Reviewing claims, addressing estate obligations, and identifying situations where claims may be disputed or negotiated | Helps the Executor properly handle debts before distributing estate assets |
| Managing estate assets | Assisting with identifying, collecting, protecting, and administering property belonging to the estate | Executors have a responsibility to properly safeguard and account for estate property |
| Distributions to beneficiaries | Helping determine when and how estate property can be distributed | Distributing assets too early can create problems if debts, taxes, or other obligations remain |
| Tax and financial considerations | Identifying tax issues or other financial considerations that may arise during estate administration | Proper planning may help avoid unnecessary costs or complications for the estate |
| Reducing costly mistakes | Providing guidance throughout decisions involving court requirements, creditors, property, and beneficiaries | Executors can face personal liability for certain mistakes made while administering an estate |
| Saving the Executor time | Handling many of the legal and administrative tasks involved in probate | Estate administration can require substantial time, particularly during certain stages of the process |
Many people accept being a family member or friend’s Executor but do not really know what it entails.
Serving as an Executor can be an incredibly time-consuming process. Even a modest estate can require 10-20 hours per week of your attention, depending on what phase of the probate process you are in. Plus, being named as an Executor also comes with personal liability. If you make a mistake, the court can hold you personally liable and may even have to pay the Estate out of your own personal funds.
When you hire a probate attorney, you are paying for assistance with all of the duties of being an Executor. Here are a few specific things that a probate attorney helps with:
1. Saves Time & Potentially Money
When you hire a probate attorney to handle things, you have freed up a lot of hours in your personal schedule that would have otherwise been spent settling the Estate. Being an Executor is a lot of work and responsibility to take on—particularly at an emotional time while you are grieving the loss of your loved one and trying to meet your other day-to-day duties such as family obligations and “day job” requirements.
There are also instances where your attorney can spot monetary savings to the Estate, such as tax savings opportunities or opportunities to negotiate a discount on settling claims of the Estate.
2. Handles Court Filings
After someone passes away, the executor cannot just start paying bills from the decedent’s bank account or distribute personal property. The Estate must first be opened with the court, and you must then be formally appointed by the court. With a probate attorney, these filings and any necessary court communication are handled by the attorney & their staff instead of by you without any help.
Did you know… that opening an estate can sometimes take at least six weeks from the time you file your documents? Meaning if something is messed up in your documents, you may not know until six weeks later, and then you will have to start the process all over again. The easiest option is to ensure it’s done right the first time! A probate attorney and their staff help ensure that the proper filings are made promptly and correctly.
3. Shifts Liability
As we mentioned above, you can be held personally liable if you make mistakes in your role. However, when you hire a probate attorney, you reduce the chance for mistakes to be made throughout the process. Your liability exposure is also limited as liability shifts to the law firm’s professional malpractice insurance.
Please note that while it is strongly encouraged in North Carolina, malpractice insurance is not required for NC attorneys. Therefore, if you wish to hire a North Carolina law firm to assist you, you should be careful to avoid hiring a probate attorney who does not have malpractice insurance.
Is a Probate Attorney the Same as an Estate Planning Attorney?
While some individuals act as both probate and estate planning attorneys, the legal services provided for probate versus estate planning are different. A probate attorney helps after someone has died, while an estate planning attorney helps before death. A probate attorney helps settle an estate, while an estate planning attorney helps you structure your Estate.
A probate attorney cannot help you avoid probate, but an estate planning attorney can. If you meet with an estate planning attorney and establish a Revocable Living Trust as your main estate planning document instead of a Will, any of your assets that are owned by your Trust pass to your beneficiaries outside of probate. This means that your loved ones would not have to wait for a court to say it is okay for them to receive whatever you have left them. This also means your loved ones would not have to fool with the time-consuming process of probate, or if they did, it would be for very few assets.
What Does a Probate Attorney Do in North Carolina | Frequently Asked Questions
Do I need a probate attorney to settle an estate in North Carolina?
Not every estate requires the same level of legal assistance. However, probate can involve court filings, creditor claims, asset distributions, deadlines, tax considerations, and other responsibilities that an Executor must handle correctly. A probate attorney can guide the Executor through these requirements and help reduce the risk of costly mistakes.
What does a probate attorney do for an Executor in North Carolina?
A probate attorney can assist the Executor with opening the estate, preparing and filing court documents, communicating with the court, addressing creditor claims, identifying and managing estate assets, handling distributions, and completing other steps required to settle the estate. The specific services needed depend on the estate and its circumstances.
Can an Executor be personally liable for mistakes during probate?
Potentially. An Executor has legal responsibilities when administering an estate and may face personal liability for certain errors or improper actions. This is one reason Executors should understand their duties before paying debts, distributing property, or making other significant decisions involving estate assets.
How long does probate take in North Carolina?
There is no single timeline for every estate. The length of probate can depend on factors such as the estate's assets, creditor claims, court requirements, tax issues, disputes among beneficiaries, and whether paperwork is completed correctly. Even relatively straightforward estates can take months to administer.
Can I distribute money or property to beneficiaries before probate is finished?
Executors should be cautious about distributing estate assets too early. Before making distributions, the Executor may need to address court requirements, debts, creditor claims, taxes, expenses, and other obligations of the estate. Distributing assets prematurely could create problems if the estate later needs those assets to satisfy an obligation.
What is the difference between a probate attorney and an estate planning attorney?
A probate attorney generally assists after someone has died by helping the Executor or personal representative administer the estate. An estate planning attorney works with people during their lifetime to create a plan for their assets, family, and future wishes. Some law firms provide both estate planning and probate or estate administration services.
