Probate Questions to Ask
Twenty-one questions to ask a probate lawyer, or to work through yourself, when you are the executor of an estate. They cover whether probate is required at all, how fees are charged, what has to happen to the house in the first month, creditor claims and taxes, what beneficiaries are entitled to see, and where your personal liability begins. Probate rules differ by state and country, so treat these as questions to put to someone who practises where the estate is being administered.
The questions
Open any question for the note
Does this estate have to go through probate at all, or is there a simpler route?
Why ask it
Many estates qualify for a small-estate procedure, an affidavit, or pass entirely by joint ownership and beneficiary designation. This is worth settling first, because the answer can remove most of the work and cost that follows.
Which court handles this, and what is the first filing?
Why ask it
Knowing the court and the opening document lets you track the case yourself rather than relying on updates. Ask for the case number once it exists, since most probate dockets are public and you can check progress without a phone call.
What do you need from me before you can start, and what should I be gathering this week?
Why ask it
Executors commonly lose the first month waiting for a list they were never given. Ask how many certified copies of the death certificate you will need, because ordering them in one batch is far easier than requesting them one at a time.
How long do you expect this to take, and which stage usually causes the delay?
Why ask it
The named bottleneck is the useful part of the answer: a creditor claim period, a tax clearance, a property sale, or one beneficiary who will not sign. It also gives you something concrete to check on later.
How do you charge: hourly, a flat fee, or a percentage of the estate, and what is your estimate here?
Why ask it
The three models produce very different bills on the same estate. Ask what the estimate assumes and what would push it higher, and get the fee arrangement in writing before any work starts.
Who in your office will handle this day to day, and how quickly do calls get returned?
Why ask it
Much of the work is usually done by a paralegal, which is normal and cheaper. What matters is knowing who to contact and having an agreed response time, because probate involves long stretches of silence that are hard to distinguish from neglect.
Which costs come out of the estate, and which would fall to me personally?
Why ask it
Court fees, publication, appraisals, and bond premiums are ordinarily estate expenses, but the timing matters when there is no cash yet. Establish what you may need to advance and how reimbursement is documented.
In plain terms, what am I required to do as executor, and what am I not allowed to do?
Why ask it
Ask for the prohibitions explicitly. The mistakes that cause real trouble are usually well-meant: mixing estate money with your own, letting a relative take furniture early, or paying the sympathetic creditor first.
What should I do about the house right now, and who pays for it in the meantime?
Why ask it
Insurance is the urgent item, because many policies lapse or change terms once a property is unoccupied. Also raise the mortgage, the utilities, and anyone living there, since occupancy is much harder to unwind later than to address in the first weeks.
How do creditors make claims, how long do they have, and what happens if one arrives after I have paid out?
Why ask it
This is the single largest source of personal exposure for an executor. You want the claim deadline in writing and a clear instruction not to distribute before it passes, whatever pressure the family is applying.
Which debts have to be paid, in what order, and which ones end with the death?
Why ask it
Priority rules are set by statute rather than by fairness, and paying in the wrong order can leave you responsible for the shortfall. Ask specifically about medical bills, credit cards, and anything with a co-signer.
Which assets pass outside probate, and how do I confirm who the named beneficiaries are?
Why ask it
Retirement accounts, life insurance, and payable-on-death accounts usually go straight to the named person regardless of the will. Confirming the designations early prevents a distribution plan built on the wrong numbers.
What tax returns have to be filed, by when, and who prepares them?
Why ask it
There is generally a final personal return and possibly an estate return, with different deadlines. Clarify whether the lawyer's fee covers preparation or whether you need an accountant, because assuming it is included is a common and expensive error.
What are the beneficiaries entitled to see, and how often should I be reporting to them?
Why ask it
The legal minimum is often less than what keeps the peace. Agreeing a schedule, even a short written update every couple of months, prevents the silence that leads relatives to assume something is being hidden.
Can I sell the car, the furniture, or the house before the estate is settled, and who has to agree?
Why ask it
Some sales need court approval or beneficiary consent, and selling first can be treated as a breach of duty. Ask how personal items should be valued, since disputes at this level are usually about specific objects rather than money.
What happens if a beneficiary objects, and what would a contest cost the estate?
Why ask it
You want the mechanics and the likely bill, both of which come out of what everyone inherits. Ask what you should and should not say to a relative who has threatened to challenge the will.
There is property in another state or country. What additional process does that require?
Why ask it
Real estate elsewhere usually requires a separate proceeding where it sits, with its own timeline and its own lawyer. Better to know at the start than to discover it when everything else is ready to close.
What records do I need to keep, and in what form, to account for what I have done?
Why ask it
The accounting is what protects you at the end, and it is far harder to reconstruct than to maintain. Ask whether receipts, bank statements, and a running ledger will be enough, or whether a formal court accounting is required.
Am I entitled to a fee for acting as executor, and how would it be taxed?
Why ask it
Executor compensation is allowed in most places, and family executors frequently do not know it. Ask how it is calculated, whether taking it creates income tax you would not otherwise owe, and whether the family should be told in advance.
If I make a mistake, what am I personally responsible for, and can that be limited?
Why ask it
The honest answer involves bond, insurance, court approval of accounts, and formal releases from beneficiaries. A lawyer who says not to worry about it has not answered the question you asked.
What can I reasonably do myself, and when should I call you rather than work it out alone?
Why ask it
Routine tasks such as cancelling subscriptions, notifying banks, and collecting statements do not need billable hours. Establishing the dividing line at the outset keeps the bill down and stops you making a decision that is expensive to reverse.
Notes for the executor
Practical guidance for the conversation itself
The first few weeks
- 1Order several certified copies of the death certificate at once. Banks, insurers, and registries each want their own, and repeat orders add weeks.
- 2Locate the original will, not a copy, and find out where any codicils are held. Many courts require the original document to be filed.
- 3Secure the property and check the insurance position for an unoccupied home before anything else. Coverage can change or lapse on vacancy.
- 4Open a dedicated estate account once you have authority, and stop paying estate expenses from your own account beyond what you must.
- 5Make a written list of assets and debts as you find them, with dates and values. This becomes the accounting later, and reconstructing it from memory is much harder.
Avoiding the common mistakes
- Do not distribute anything early, including small personal items, until the creditor period has closed and you have been told it is safe. Early distributions are hard to claw back and the shortfall can land on you.
- Do not pay a debt because the creditor is persistent. Priority is set by law, and paying out of order can leave you personally liable.
- Keep every receipt, including small ones for postage, mileage, and locksmiths. Unsupported reimbursements are the usual source of objections.
- Do not lend or borrow between the estate and yourself, even briefly and even with good records. It is the clearest breach of duty an executor can commit.
- Write down the reasoning behind any judgement call at the time you make it. A contemporaneous note is worth far more than an explanation offered a year later.
Dealing with the family
- Send the same written update to every beneficiary at the same time. Separate conversations create the impression, often mistaken, that someone is being told more.
- Say plainly at the start how long you expect this to take and that the middle will be quiet. Most suspicion comes from an unexplained gap rather than from any decision.
- For contested personal items, agree a method before people start claiming things: rotating choice, drawn lots, or a valuer. Deciding after the arguments start rarely works.
- If you are also a beneficiary, say so openly and expect to be held to a higher standard of documentation on anything you receive.
- If the estate is insolvent, or the family has begun threatening litigation, stop acting on your own judgement and take advice before the next step.