Dealing with the loss of a loved one can be overwhelming, and the probate process might add to the stress. Probate is a formal legal process that verifies the validity of a will, appoints an executor or personal representative, and oversees the distribution of the deceased’s assets to their rightful beneficiaries. This is where a probate attorney becomes essential.
Probate often comes into play when dealing with real estate and property, regardless of whether the deceased had a will, explains Dennis Brislawn, a probate attorney based in Bellevue, Washington, who also practices in Alaska and Oregon. However, some assets, like life insurance policies, are paid directly to beneficiaries and bypass probate.
A probate attorney ensures that all beneficiaries, creditors, and taxes are managed correctly according to state probate laws and timelines. For detailed information on estate planning and probate laws by state, check FindLaw’s comprehensive listings.
Work With a Top Probate Agent
Top-performing agents sell homes faster and for more money than average agents. When selling a house in probate, maximizing the home sale can best serve the estate’s interests.
Depending on your loved one’s estate planning and your own familiarity with such matters, you might not need a probate attorney. However, you will still need to be legally authorized to handle the disposal of the property.
“You shouldn’t be listing a house that you have no authority to sell, ” Brislawn says. It’s somewhat akin to fraud.
“There are a lot of issues that may or may not apply to a given case, and so understanding the context in which probate occurs is critically important.”
Let’s explore what a probate attorney does and when you might need one for selling estate property.
The probate attorney’s job and how it helps you
A probate attorney is a valuable resource who works with the executor of an estate, sometimes called a “nominated personal representative,” regarding tax deadlines, outstanding debts, and the distribution of assets, Brislawn says.
There’s a wealth of estate planning information available online and through local bar associations, though comfort levels with this task varies. According to a 2024 survey by Caring.com:
- Just 32% of Americans have a will, representing a 6% drop from 2023 and the first decline in estate planning rates since 2020.
- Since 2023, 14% more US adults attribute their neglect of estate planning to “a lack of assets.”
- The proportion of white Americans with a will has fallen by 3% since 2020, whereas estate planning among Black Americans has risen by 19% over the same period.
- Young adults aged 18 to 34 are the only demographic that has not experienced a decrease in estate planning rates since 2020.
Brislawn says that it’s common for people to handle the probate process for a loved one on their own, but adds that “there’s a mixed bag of results, and if you screw it up, you’re liable. If you blow a deadline, you’re liable. If you fail to do a tax filing or pay creditors, you’re liable.”
“There are time frames that people have to be aware of; there are tax deadlines, creditor notices, veterans’ benefits, Medicaid reimbursement,” and more. “There are a lot of issues that may or may not apply to a given case, and so understanding the context in which probate occurs is critically important.”
Probate attorneys don’t just deal with residences. They also work with estates on investment properties such as duplexes, townhomes, and even commercial buildings. One of Brislawn’s clients has property that’s been operated for three generations as an automotive repair shop, which requires proper inspections and safety regarding oils, antifreeze, and other chemicals.
For real estate agents like Sue Smith, who specializes in probate and serves Loudoun County, Maryland, a probate attorney can offer valuable guidance, especially when there are disagreements among multiple heirs.
“They all have to sign a listing agreement. They all have to agree on me,” Smith says.
Best practices and resources for finding a good probate attorney
To find a good probate attorney, start by using lawyer rating services like Avvo.com or Martindale, which offer searchable databases by location and practice area. These platforms can help you identify qualified legal professionals in your area.
Additionally, consider asking friends, neighbors, and other advisors, such as accountants or real estate agents, for their recommendations. They may have valuable referrals and can help point you in the right direction.
Brislawn recommends meeting in person with attorneys who offer an initial no-cost consultation. “See if they’ll spend a little time to talk to you about the process and what they can do,” he says.
How probate attorneys get paid and how much they cost
Probate attorneys may be compensated in various ways, including hourly rates, flat fees, or a percentage of the estate’s value, depending on local statutes and regulations. In some cases, attorneys might offer flexibility in their payment structure based on the complexity of the estate and the specific needs of the client. Always clarify the fee arrangement and payment options with the attorney before proceeding.
According to Nolo.com, one of the leading websites for legal matters:
- Hourly rates can range from $150 to $250, depending on the location, lawyer’s training, experience, and the size of the law firm.
- As for a flat fee, $1,500 is about the norm for a routine probate case.
If you live where probate fees are set by statute, costs can be higher. State law permits lawyers to charge a set percentage fee in Arkansas, Iowa, California, Missouri, Florida, and Wyoming. These fees can be disproportionately high because they are based on the gross value of the probate assets rather than the net value.
For example, if an estate includes a house valued at $300,000 with a remaining mortgage of $175,000, the lawyer’s fee is calculated on the full $300,000, not the $125,000 in equity the estate actually owns. The probate paperwork for transferring a $1 million house is essentially the same as for a $150,000 house, so the fee difference seems excessive.
To understand how high these fees can be, consider California’s statutory fee schedule for “ordinary” services. A lawyer can charge:
- 4% of the first $100,000 of the gross value of the probate estate
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- 0.5% of the next $15 million
- “a reasonable amount” for anything over $25 million
(Cal. Prob. Code § 10810, 2024).
Under this system, probating a typical California estate with a gross value of $500,000 would cost $13,000 in legal fees — quite high considering the actual amount of legal work involved. The estate could save significantly by paying the lawyer an hourly rate instead.
Do you need a probate attorney to sell estate property?
An estate is required to go through probate if:
- There is no valid will to appoint an estate executor.
- There are issues with the existing will.
- There are no designated beneficiaries.
- A valid will requires probate to settle debts and transfer ownership.
Although each state varies, a good rule of thumb is that if a decedent owned land or had $100,000 or more in assets, probate is required, Brislawn says.
If the deceased had a transfer-on-death deed, a living trust, or if a house was held in joint tenancy with the right of survivorship, probate is generally not required. These arrangements allow the assets to pass directly to the beneficiaries without going through the probate process.
You also can avoid the probate process if you’re the surviving spouse of the deceased in a community property state. However, if you’re a child or other relative of the deceased in this situation, you’ll likely be headed to probate court.
How can an agent who has probate experience help in selling estate property?
Regardless of whether you have a probate attorney, a real estate agent with experience in selling estate property will be familiar with tasks such as registering the death certificate with the county courthouse, checking for liens, working closely with the title company, and ensuring that heirs have all necessary paperwork in order.
“I always check the title in all situations,” Smith says. “We want to make sure that we have a will that matches the signatories. I’ve had cases where I’ve had multiple family members signing on behalf of the person who has passed away.”
All the heirs should feel comfortable with the agent and agree on what to do with the property. Smith said she’s worked with one group of siblings where one was designated as her liaison, and in another situation, all five siblings wanted to be involved. “I confer with all five by email, and we conference call. Technology has really created beautiful links.”
Connect with a Top Agent
Selling a home can be a difficult process under the best of circumstances. Partnering with a top agent experienced in probate can help when selling a home after a death in the family.
How you can assist the probate attorney and real estate agent
While each situation is unique, the best approach is to remember that both of these professionals are here to assist you by answering your questions and guiding you through the necessary steps.
“A lot of people don’t know where to start,” Smith says. “A lot of times there’s uncertainty as far as who wants what.”
She says she always comes prepared with recommendations for companies that will clear out a house entirely and have it professionally cleaned and staged before putting it on the market. She’s also sensitive to families who don’t want to go through that and would prefer selling the house as-is to distribute the proceeds as swiftly as possible.
“Things have to be ironed out before the listing starts. They have to work together,” Smith says, adding that the middle of a real estate transaction is not the time to bicker about a price.
Probate can take three months to more than a year, depending on the value of the estate and whether your state has adopted the ABA-approved Uniform Probate Code.
Losing someone you care about is tough, but staying in touch with family and the right professionals makes a big difference. It helps make sure everyone’s wishes are respected and everything is handled smoothly.
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