A Grant of Probate is necessary for the executor to distribute assets to the heirs of the deceased. A probate lawyer is not always necessary for this process.
Introduction
Probate is one of the processes which is necessary in order to distribute assets according to the Will. While it is possible for the executor of the will to apply for probate, if the estate is large or complicated or there is family conflict regarding the Will, the executor may require the assistance of a probate lawyer to ensure everything is done correctly. In the case of a small or uncomplicated estate, It may not be necessary to apply for probate. Probate lawyers can be quite expensive, so when the estate is not large, the executor may choose to undertake this process without a probate lawyer.
What is a Probate Lawyer?
Probate is necessary in order to validate a will. The executor is the person who is responsible for ensuring that the debts of the deceased person are paid and that their remaining estate assets are distributed. It is not necessary in all circumstances. To read more detailed information see What is Probate?
It may be necessary to get assistance from a legal professional to get a Grant of Probate. In Australia, these legal professionals are called “probate lawyers” whereas in the USA, the word “attorney” is used instead of “lawyer”. In the UK, the word “solicitor” is used. They all have the same job, regardless of the name. A probate lawyer will assist the executor in managing the probate process. There are a number of different duties that they can undertake. They may examine the Will to ensure that it is valid. They can ensure that the executor has all the documents that are required and that all the forms that are lodged are correct. If there is no Will, then the probate lawyer can help to divide the assets according to the law. To learn more about exactly what a probate lawyer does, see this article on findlaw.com.
“Probate is the official process that seeks to validate the deceased person’s will to enable the executor of the Will to administer the assets etc (the estate) of the deceased person. If the application for probate is successful, then the Court will award what is referred to as a “grant of probate.” The Grant of Probate will then allow the executor to distribute those assets in accordance with the Will.”
australialawyers.com.au/what-is-probate
When would I need a Probate Lawyer?
It can be quite expensive to pay the costs of a probate lawyer and those expenses will reduce the amount of money that can be distributed to the heirs. In some cases, the estate may not even cover the cost of the lawyer’s fees. Luckily not everyone needs a probate lawyer.
If the estate is not complex, then all the probate lawyer would need to do is to fill out forms and submit them to the probate court. Often, the executor will be able to manage this without any help and a probate lawyer would not be needed. A probate consultant can do some of the tricky paperwork, and they are cheaper than lawyers. This article on probateconsultants.com.au gives 5 reasons why you might not need a probate lawyer.
There are a number of circumstances where the probate process could be complicated and a probate lawyer is necessary. If there is no Will or there is a problem with the will such as if it is unclear or it hasn’t been signed properly are examples of these circumstances. You may also need a probate lawyer if there is likely to be conflict in the family arising out of the Will. This article by Trust & Will gives more details about whether you will need a probate lawyer. Some of the information here is only relevant to the USA, but a lot of it will also apply in Australia and the UK.
How much do Probate Lawyers cost in Australia? USA? UK?
It is difficult to say how much probate lawyers cost, since the cost of the service will depend on the size of the estate and the amount of work that needs to be done.
In Australia, how much is paid to the lawyer will differ according to the state you are in. Individual lawyers will also charge different amounts. Some lawyers charge hourly rates while others may charge a fixed fee. This article by Charter Law gives some idea of the cost of probate as well as a range of hourly rates for lawyers in Australia.
In the USA, the cost of a probate attorney, like in Australia, will vary according to the state. In some states there are laws limiting the amount that they can charge. Payment will depend on the amount of work that needs to be done or on the size of the estate. A licensed attorney may charge a percentage of the estate property, a fixed fee, a combination of percentage of estate and fixed fee, or the attorney may charge an hourly rate. This article by Stress Free Probate outlines the cost of probate and gives a general idea of how much a probate attorney could cost.
In the UK, probate solicitors tend to charge hourly rates and a percentage of the estate. There are other solicitors who charge a fixed fee. Costs will vary according to the country in the UK. The Law Superstore outlines the cost of probate with a general idea of the cost of a probate solicitor. The cost will be different depending on which country in the UK you are in.
How do you avoid probate in Australia?
There are two main circumstances where you may be able to avoid probate in Australia. The first is if the assets are jointly owned. In that case, the estate property will automatically transfer to the remaining asset holder. The second is if the amount of the assets to be distributed is not very large. The executor will usually need the Grant of Probate to allow them to request the transfer of assets to them, but if the estate is not complicated and not too large, then a Grant of Probate may not be necessary. It might be enough for the executor to have a copy of the death certificate and the Will in order for the funds to be released to the executor.
“The deceased’s estate is required to pay probate costs and not the executor personally. The executor incurs probate costs on behalf of the deceased estate and is entitled to be indemnified for those costs from the assets of the estate.”
charterlawlegal.net.au/how-much-does-probate-cost
Is probate needed if there is a will?
Probate might be needed even if there is a Will in Australia. When there are jointly owned assets, probate is not needed. The executor of a Will will not need probate if the deceased person’s assets are not of a high value. Each financial institution and share registry will have a low-value cap, and if the asset is less than this cap, then probate will not be necessary. In this case, all the executor will need is a certified copy of the Will and the death certificate. However, if the financial institution issues a cheque in the name of the estate, probate will be needed. If someone dies without a Will, then probate is unnecessary. In that case, the next of kin will apply for a letter of administration. For a more detailed explanation about when Probate is required, see this article on the Willed website.
What documents do you need for probate?
There are a number of different documents that are needed for probate. Before the application can be made, the executor will need:
- The original Will and certified copies of the Will
- Original death certificate or certified copies
- Financial documents
Once the executor has these documents, they will then be ready to make an application for probate. There will be a number of forms to fill out when making the application and these will differ depending on where the application is made. See this Trust and Will: Probate Documents Checklist for a more detailed explanation.
Who decides if probate is needed?
Probate is necessary when the deceased person has assets that are individually owned. If the estate is large enough, probate will be necessary. Probate is handled by the executor of the Will. If the executor is not certain whether probate is necessary, then a probate lawyer will be useful. Where there is no will, probate will be decided by the courts. For more details, see this article by Easler Law.
How do I find a probate lawyer near me?
In most countries, you can easily find a list of probate lawyers online. In Australia, Probate Lawyers Australia provides a listing for probate lawyers which is searchable by postcode or by name. It is also possible to search for lawyers who speak languages other than English on this website. For information about how to find a probate solicitor in the UK, see Which? Probate Solicitors. In the USA, you can search for an attorney by state on USA Probate.
Conclusion
Probate lawyers are not always necessary, but the executor of a Will should consider it if they are not feeling confident about the probate process or the legal process. It is important to ensure that the executor has all the documents they require and are able to apply for the Grant of Probate. If the estate is small, then probate may not be necessary, but a probate lawyer will be able to give advice on probate law. Probate lawyers can be expensive and the executor may decide to do some of the work themselves as the costs of the lawyers are taken from the estate. Where the estate is small, it may not even cover the cost of a probate lawyer.
It is always best to do your own research, and a licensed attorney can provide legal advice based on your personal circumstances.
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