What Questions to Ask a Probate Lawyer
Questions for a first meeting with a probate lawyer, covering fees, executor duties, creditor claims, statutory deadlines, property sales, and contested wills. Written for someone who has just been named executor or administrator.
The questions
Open any question for the note
Which of these assets have to go through probate, and which pass outside it?
Why ask it
Accounts with named beneficiaries, jointly held property, and assets in a living trust usually transfer without the court. Establishing this early often shrinks the estate, and occasionally shows that no probate is needed at all.
Does this estate need full probate, or does it qualify for a simplified process?
Why ask it
Most states offer a small estate affidavit or summary administration below a dollar threshold. A lawyer who does not raise the possibility, or who cannot state the threshold where you live, is quoting you a process you may not need.
How are your fees set: hourly, flat, or a percentage of the estate?
Why ask it
Percentage fees are set by statute in some states and negotiable in others, and on an estate whose value sits mostly in one house they can be far higher than the work involved. Ask which basis applies and whether the other is available.
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 all come out of the estate, and an honest answer will be a range with the variables named rather than a single figure.
What are my duties as executor, and where could I be held personally liable?
Why ask it
Executors can be held responsible for distributing before debts and taxes are settled, for mixing estate money with their own, and for losses caused by neglecting property. Knowing the specific exposures matters more than a general reassurance that you will be fine.
What should I avoid doing before the court formally appoints me?
Why ask it
Before appointment you generally have no authority to sell property, close accounts, or pay creditors, and acting anyway can create problems that are difficult to undo. The useful answer is a short list of things to leave alone for now.
What is the first filing, and how soon does it have to happen?
Why ask it
Many states require the will to be lodged with the court within a set period after death, whether or not probate is opened. Missing that is a common early error, and it is easier to fix if you learn about it in week one.
Realistically, how long will this take from filing to final distribution?
Why ask it
A straightforward estate often runs nine to eighteen months, largely because the creditor claim period cannot be shortened. Ask what specifically would extend it here, since the honest answer usually names real estate, a business, or a family disagreement.
Which deadlines are fixed by law, and which are flexible?
Why ask it
Tax filings and creditor notice periods are hard dates with consequences. Knowing which is which lets you take the pressure off the parts of the process that can wait, which matters when you are also grieving.
How do we notify creditors, and how long do they have to bring a claim?
Why ask it
Known creditors usually get direct notice while unknown ones are reached by publication, and the clock only starts when notice is given properly. Giving notice badly leaves the estate exposed long after you thought it was closed.
If the estate cannot cover everything, in what order do debts get paid?
Why ask it
Statutes set a priority: administration costs, funeral expenses, taxes, secured debts, then general creditors. Paying a sympathetic creditor ahead of that order is one of the ways executors become personally liable for the shortfall.
How do we value the house and personal property, and do we need formal appraisals?
Why ask it
The date-of-death value sets the tax basis for anyone who inherits, so a casual estimate can cost a beneficiary money years later. Ask which items genuinely need a licensed appraisal and which the court will accept a market estimate for.
Can we sell the house while probate is open, and does the court have to approve it?
Why ask it
Some states let the executor sell under their letters of authority, others require court confirmation, which adds weeks and can affect what a buyer will offer. This shapes whether you list the property now or carry the costs of holding it.
What tax returns need to be filed, and from which funds?
Why ask it
There is usually a final personal return for the year of death, and often an estate income tax return as well. Ask whether a state estate or inheritance tax applies here, because the state thresholds are far lower than the federal one.
What happens to income the estate earns while it stays open?
Why ask it
Rent, dividends, and interest received after death belong to the estate and are taxed to it, sometimes at compressed rates that rise quickly. This is a reason not to leave an estate open longer than the work requires.
One beneficiary has said they may contest the will. What does that change?
Why ask it
A contest freezes distribution and shifts the work from administration to litigation, with a different fee structure. Ask what the grounds would have to be and whether the will contains a clause that discourages challenges.
How should I handle a relative living in the house or who has already taken belongings?
Why ask it
This is the most common flashpoint in family estates and it has a legal answer, not just a diplomatic one. You want to know what you are required to do, and what happens if you decide not to pursue it.
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.
What records do I need to keep, and what accounting will beneficiaries receive?
Why ask it
You will likely have to account for every dollar in and out, and beneficiaries are usually entitled to see it. Setting up a dedicated estate account and keeping receipts from day one is far easier than reconstructing a year later.
Who will do the day-to-day work on this file, and how is their time billed?
Why ask it
Much probate work is properly done by paralegals at a lower rate, which is fine as long as you know it and are billed accordingly. Ask who to contact for routine questions so you are not paying partner rates for status updates.
Working through an estate
Practical guidance for the conversation itself
The first few weeks
Order more death certificates than you think you need
Banks, insurers, pension administrators, and title companies each want a certified copy and most will not return it. Ten is a reasonable starting number.
Secure property before anything else
Lock the house, confirm the insurer knows it is vacant, and take photographs of the contents. Vacancy can void a homeowner policy, and a photographic record settles most later disagreements about what was there.
Turn off automatic payments carefully, not quickly
Utilities and insurance on estate property usually need to continue. Cancel subscriptions and memberships, but leave anything protecting an asset in place until the lawyer has reviewed it.
What to bring to the first meeting
- The original will and any codicils, plus any trust documents, even if you are unsure they are current.
- A certified death certificate.
- A rough list of assets with approximate values, and a note of how each is titled.
- Recent statements for bank, brokerage, and retirement accounts, and the deed or mortgage statement for any real estate.
- A list of known debts, including credit cards, medical bills, and anything owed to family members.
- Names, addresses, and relationships of everyone named in the will and anyone who might claim they should have been.
Where executors run into trouble
- Distributing money to beneficiaries before the creditor period closes and the taxes are settled.
- Using a personal account for estate funds, which makes the required accounting almost impossible to produce.
- Paying a debt out of personal money in the belief it will be reimbursed later.
- Letting one beneficiary take items informally, which sets a precedent the others will invoke.
- Going quiet. Most disputes begin with beneficiaries who feel they are not being told what is happening.
Keeping the family informed
Send the same update to everyone
A short written note every month or two, identical for all beneficiaries, prevents the suspicion that someone is better informed than the rest. It costs little and heads off most conflict.
Be plain about the timeline
Tell beneficiaries early that the process takes most of a year and why. Expectations set at the start are much easier to manage than repeated explanations for delay.
Separate the legal from the personal
Decisions about belongings with sentimental rather than monetary value are usually better handled as a family conversation than through the lawyer, whose time is billed by the hour.