Questions to Ask a Probate Lawyer
Questions to ask a probate lawyer when you are the executor or administrator of an estate, from the first meeting to the day it closes. They run in the order the work does: what to settle at the first meeting, fees and who does what, your own duties, debts and taxes, the house and other property, and what the beneficiaries are owed before the estate can close. Probate rules change from state to state and from country to country, so many of these are a way of asking how it works where this estate is. If you have a single consultation with an attorney about probate, the first two groups are the ones to get through.
The questions
Each question, and why to ask it
First meeting
Does this estate have to go through probate at all?
Why ask it
Jointly held property, accounts with a named beneficiary, and assets in a trust often pass outside probate, so bring a list of what was owned and how each item was titled. If nothing was left in the person's sole name, there may be very little for a court to do.
Is there a simplified or small-estate process this might qualify for?
Why ask it
Many states and countries have a shorter route for estates under a set value, sometimes no more than a sworn affidavit, and it usually costs far less. Ask which assets count toward the limit where this estate is, and what would rule it out.
How are your fees calculated: hourly, a flat fee, or a percentage set by state law?
Why ask it
Some states set statutory fees as a percentage of the estate, and in some of those a lower hourly arrangement is still permitted. Ask which applies here, whether a percentage is worked out before or after the debts come off, and whether another arrangement is open to you.
What am I allowed to do right now, and what has to wait for the court?
Why ask it
Between the death and your appointment there is usually a stretch where you can secure property and do little else. Ask for the line item by item: the funeral bill, the utilities, the locks on the house, the car in the driveway.
How long does an estate like this usually take in this county?
Why ask it
The court's backlog can matter as much as the estate itself, which is why a lawyer who files in that county is the one to ask. Listen for a range with a reason given for each end of it.
What are the first filings, and what documents do you need from me to make them?
Why ask it
Getting a specific list at the first meeting saves weeks of back and forth. Expect the death certificate, the original will, and account statements as of the date of death, and ask which originals the office has to keep, since some cannot be replaced.
What most often delays estates like this one, and what can I start on now?
Why ask it
Usually the answer is a missing document, a beneficiary who cannot be located, or a house that needs clearing. Whichever it is here, it is often work you can begin before the first hearing.
What if the will cannot be found, or the copy we have is unsigned?
Why ask it
An unsigned or missing original may be provable in some states and worthless in others, in which case intestacy rules decide who inherits. Establishing this early prevents months spent administering an estate under the wrong document.
Fees and the firm
How much of your practice is probate, and how many estates like this one do you handle in a year?
Why ask it
Many general practitioners take probate work only occasionally. Someone who files in this court every month knows what the clerk sends back and how the judge schedules, which tends to mean fewer returned filings.
What is this likely to cost in total, including court fees, publication, and any bond?
Why ask it
Legal fees are only part of it. Filing fees, newspaper notice, appraisals, and a fiduciary bond can all come out of the estate too. Ask for each as its own line, so you can see which are fixed and which depend on how the estate goes.
What is not included in the fee you have quoted?
Why ask it
A will contest, the sale of a house, and the estate's tax returns are commonly billed on top of a quoted probate fee. Ask for the exclusions to be listed in the engagement letter, so a second invoice is not a surprise to you or to the beneficiaries.
Who in your office will do the day-to-day work, and at what rate?
Why ask it
Much of probate is paperwork handled by a paralegal, which is normal and cheaper. What you want to know is who answers the phone when you call and what each person's time costs.
How will you keep me updated, and how quickly should I expect a reply?
Why ask it
Probate has long stretches with nothing to report, and that is when an executor starts to wonder whether anything is being done. Agree a rhythm now, such as an email after each filing, and ask whether short calls and emails are billed.
What do I have to do as executor, and what will your office do for me?
Why ask it
Ask for the division in writing. Executors are often surprised by how much of the inventory, the notices, and the record-keeping remains theirs even with a lawyer engaged. If the fee is hourly, ask too which tasks you could take on yourself to keep it down, such as collecting statements or closing accounts.
Which costs come out of the estate, and which will I have to cover from my own pocket first?
Why ask it
Court fees, the bond, and appraisals are generally estate expenses, but the estate's money can be out of reach until you are appointed. Ask how you are reimbursed for what you front, and whether the office needs the receipts in any particular form.
Which decisions can I make from here without calling you?
Why ask it
Agreeing a threshold, by value or by type of decision, keeps the estate moving and the fees down. It also removes the anxiety of wondering whether every small step needs advice.
Your duties
What am I personally responsible for if something goes wrong?
Why ask it
Executors can be held liable for paying the wrong creditor, distributing too early, or failing to file a return, and most people take the role without knowing this. Ask which of those risks apply here and what protects you: court approval, a bond, or waiting out a statutory period.
Will I have to post a bond, and can it be waived?
Why ask it
Some wills waive the bond, and some courts will go without one if every beneficiary agrees. Where it is required, ask what the premium is likely to be and whether your own credit history affects getting one.
Which deadlines are fixed by law, and which are flexible?
Why ask it
Tax filings and creditor notice periods tend to be hard dates with consequences, and much of the rest is not. Ask for the fixed ones as a dated list, so you know which parts can wait a few weeks without harm.
Do I need a separate bank account and a tax number for the estate?
Why ask it
Estate money that passes through your own account is hard to explain at an accounting, however carefully you tracked it. Ask what the bank will want before it opens one, often the court's letter of appointment and a tax identification number for the estate, and who applies for that number.
What records do I need to keep, and in what form will the court want them?
Why ask it
A running ledger of every receipt and payment, with supporting documents, is what an accounting is built from. Setting it up in the first week takes an hour, and reconstructing it a year later can take days.
Am I allowed to be paid for doing this, and how is the amount set?
Why ask it
Executor compensation is permitted in many places, sometimes at a rate fixed by statute and sometimes only with the court's approval. Ask how to claim it, whether your hours need recording, and how it is taxed, since for an executor who also inherits it can be worth less than it looks.
Can I step down if this turns out to be more than I can carry?
Why ask it
Resignation is generally possible, with a process and sometimes an accounting for the period you served. It is a fair question to ask early, especially if you are also grieving or unwell, and asking it is not a failure.
Debts and taxes
Is this estate solvent, and what changes if it isn't?
Why ask it
If the debts exceed the assets, the rules on what gets paid, in what order, and what beneficiaries receive change completely. This is the question to ask before any bill is paid, not after.
In what order do debts, taxes, expenses, and gifts get paid?
Why ask it
Priority is set by law, not by which creditor is most persistent or which relative is most upset. Ask for the order in writing so you can point to it when someone asks you to pay them first.
How do I deal with creditors, and how long do they have to make a claim?
Why ask it
There is usually a fixed period after notice is given during which claims must be brought, and distributing before it ends can leave you personally exposed. Ask what has to be published and who must be written to directly, then put the closing date in your calendar.
What do I do about a bill I don't think is owed?
Why ask it
Not every invoice that arrives is a valid claim: some are duplicates, some are scams, and some debts may not survive the death. Ask what the process is for rejecting a claim and how long the creditor then has to respond.
Which tax returns are due, and by when?
Why ask it
A final personal return and possibly an estate return are separate filings with separate deadlines, and penalties for missing them can fall on you. Ask who is preparing each one, the firm or an accountant, and who is watching the dates.
What happens to income the estate earns while it stays open?
Why ask it
Rent, dividends, and interest that arrive after the death generally belong to the estate, and the estate may owe tax on them in its own right. Ask how that income is reported where you are, and whether it is a reason to close sooner than you otherwise would.
What do I do if a debt or an asset turns up after distributions have started?
Why ask it
Forgotten accounts and late medical bills are ordinary. Ask whether money already handed out can be called back, and whether a closed estate can be reopened for something found afterwards.
House and property
What happens with accounts held jointly or with a named beneficiary?
Why ask it
These usually go straight to the surviving owner or the person named, which is why one relative may be paid within weeks while the rest wait on the court. Ask whether you have any duty to report or chase them, and what happens if the named beneficiary has died or the form was never updated.
What do I need to do about the house?
Why ask it
An empty property needs insurance that covers vacancy, the utilities kept on, and often a decision about sale or transfer. Insurers frequently limit cover after a property has been unoccupied for a set number of weeks, so raise this early.
Who keeps paying the mortgage while the estate is open, and what do I tell the lender?
Why ask it
A loan secured on the house generally keeps running after the borrower has died, and missed payments can put the property at risk before anyone inherits it. Ask whether the estate pays, from which account, and whether the lender should have written notice of the death.
How do we value the house and personal property, and do we need formal appraisals?
Why ask it
The value on the date of death often becomes the starting figure for tax when an heir later sells, so a casual estimate can cost a beneficiary money years on. Ask which items need a licensed appraisal and which the court will accept a market estimate for.
What if an asset is worth much more or less than we first listed?
Why ask it
Valuations move, particularly on property, shares, and contents. Ask how far out a figure has to be before the inventory must be amended, and whether the change alters the tax due or anyone's share.
Can the house be sold or rented before the estate closes, and what approval does that need?
Why ask it
Depending on the will and the state, a sale may need court authority or the consent of beneficiaries. Ask about the timing, since carrying costs continue while permission is sought.
Can the car, the furniture, or other belongings be sold or given away before the estate closes?
Why ask it
Moving things out early can look like self-dealing, even when the whole family agreed to it at the kitchen table. Ask what has to be inventoried and valued first, and whether selling a vehicle needs the court's sign-off where you are.
Some items have already been taken from the house. How do I handle that?
Why ask it
It happens often, usually before anyone knew there were rules, and it is easier to raise now than at the accounting. Ask whether it needs to be recorded, valued, and set against that person's share, and what to do if the items are not returned.
What should I do about the digital accounts, the phone, and the subscriptions?
Why ask it
Access to email, photographs, and cloud storage is governed by provider terms and by law, and using someone's password can be a problem even with good intentions. Ask what to close, what to preserve, and what needs the court.
What happens with assets in another state or another country?
Why ask it
Real property elsewhere usually requires a separate proceeding in that state, with its own lawyer and timeline. Ask early, since this is a common cause of an estate running much longer than expected.
Beneficiaries and closing
What am I required to tell the beneficiaries, and when?
Why ask it
There is usually a legal minimum, such as notice of the probate and a copy of the will or the inventory. Disputes often start with relatives who felt kept in the dark, so ask what you must send and consider going somewhat beyond it.
What do I say to a beneficiary who wants their money now?
Why ask it
Having the lawyer's explanation of the creditor period in plain words, ready to pass on, takes the pressure off you personally. Ask whether the office will put it in a short letter, since the same sentence tends to land better on a law firm's letterhead than from a sibling.
Can I make a partial distribution before the estate closes, and what risk do I take on if I do?
Why ask it
If an early payment turns out to be too generous and the beneficiary cannot return it, the shortfall may be yours to make up. Ask what protection is usual locally, such as a signed receipt with a promise to refund or a reserve held back, before releasing anything.
What happens if another will or a written note about their wishes turns up?
Why ask it
Later documents, informal letters, and promises made verbally are treated differently, and none of them should be quietly ignored or acted on. Tell the lawyer as soon as anything surfaces.
If a beneficiary is unhappy with the will, what would it take for them to contest it, and what would that cost the estate?
Why ask it
Ask about grounds, the deadline for filing an objection, and who pays the legal fees on each side. A candid answer here often changes how the executor communicates from the start.
What has to happen before the estate can close and I'm released?
Why ask it
Ask for the closing checklist: final accounting, receipts from beneficiaries, tax clearance, and any court approval. Knowing the list gives you a sense of the remaining distance, which is often the thing executors most want.
Administering an Estate: Practical Notes
Practical guidance for the conversation itself
The First Few Weeks
List the assets before you see the attorney
Accounts, property, vehicles, insurance, pensions, and any share in a business, each with the name of the institution and a rough value. Mark the ones that already name a beneficiary or a joint owner: those may never reach the probate court, and it is the first thing the attorney will want to know.
Secure before you sort
Lock the property, check the insurance covers it while empty, redirect the post, and take photographs of each room before anything is cleared. Sorting through belongings can wait. Securing them cannot.
Start the ledger on day one
One spreadsheet with dates, amounts, what each payment was for, and where the receipt is filed. Every accounting, tax return, and awkward family question later is answered from this file.
Open a separate estate account as soon as you are authorized
Run every receipt and payment through it and reimburse yourself for anything you have had to cover personally. Using your own account for convenience is how an accounting becomes hard to explain.
Log what you spend and the hours you put in
Mileage, postage, a locksmith, and filing fees paid from your own pocket can usually be claimed back from the estate, but only against a dated record. The same log is what supports executor compensation if you decide to take it.
Order several certified copies of the death certificate
Banks, insurers, registrars, and pension providers each want their own. Getting a handful at the outset saves weeks of waiting on single copies.
Write to the beneficiaries early, even with little to say
A short factual note explaining the stage, the likely timescale, and when they will next hear from you heads off a good deal of the friction that arises later. Send the same note to everyone at once, because separate conversations start to look like favourites. Keep a copy of each update with the ledger.
Where Executors Get Into Difficulty
Paying or distributing too soon
Settling a bill or handing over a gift before the creditor period closes and the taxes are known can leave you personally short. When someone presses, the answer is that the law sets the timing, not you.
Treating sentimental items as minor
Families fall out over a ring, a tool set, or a photograph album at least as readily as over the investments. Record who has what, in writing, and agree a method for dividing the rest before anything leaves the house.
Acting on what you were told the person wanted
Verbal promises and undated notes may carry no legal weight, however genuine they were. Raise them with the lawyer rather than honouring or discarding them yourself.
Going quiet
Long silences read as concealment even when nothing is wrong, and probate contains long stretches where nothing can happen. A brief update every month or two costs you almost nothing and prevents suspicion hardening.
Carrying it alone
This work arrives at the worst possible time and often falls on the person least able to take it on. Delegating the house clearance, the accounts, or the correspondence to another family member is normal, and stepping down is possible if you need to.
What to Ask a Probate Attorney at Each Stage
At the start
- 1"What am I allowed to do before the court appoints me?"
- 2"Is the estate solvent?"
- 3"What am I personally responsible for?"
- 4"What records should I be keeping?"
In the middle, while claims and taxes are pending
- 1"When does the creditor period close?"
- 2"What do I do about a bill I don't think is owed?"
- 3"Which returns are due, and who is filing them?"
- 4"What do I tell a beneficiary who wants money now?"
Towards the end
- 1"What still has to happen before we can close?"
- 2"Am I claiming compensation, and how is it recorded?"
- 3"What do the beneficiaries need to sign?"
- 4"When am I formally released?"