After a death, an estate lawyer walks the executor (sometimes called the personal representative) through every step of settling the deceased person’s affairs: confirming the will is valid, opening a probate case, inventorying and valuing property, paying creditors in the order the law requires, filing the right tax returns, defending against any challenges, and finally transferring what remains to the people entitled to inherit. The reason to have a lawyer involved at all is simple. An executor who pays debts out of order, misses a tax deadline, or hands money to beneficiaries too soon can be held personally liable for the shortfall. So what an estate lawyer does after death is, in large part, keep the executor out of that trap while moving the estate to a lawful close.
Reviewing the Will and Choosing the Right Probate Path
The first job is to read the will, any trust documents, and related estate planning paperwork. The attorney checks that the will meets the state’s requirements for validity: proper signatures, the right number of witnesses, and whether it carries a self-proving affidavit — a notarized statement from the witnesses that lets the court accept the will without calling them to testify. Nearly every state recognizes self-proving wills.1Legal Information Institute. Self-Proving Will
The lawyer confirms the named executor is willing and legally eligible. If the person died intestate (without a will), the attorney determines who has priority to serve as administrator and who inherits under state law. In most states the order runs surviving spouse, then children, grandchildren, parents, siblings, and more distant relatives. If no qualifying relative exists, the estate can pass to the state.
Formal Probate, Informal Probate, or a Small Estate Shortcut
Not every estate needs the same track. In the roughly 18 states that follow the Uniform Probate Code, the attorney can often use informal probate — a streamlined, paperwork-driven process with minimal court involvement — when nobody disputes the will and the debts are manageable.2Justia. Informal Probate and Legal Procedures If beneficiaries disagree about what the will means, if its validity is in doubt, or if the estate owes more than it owns, the lawyer moves to formal probate, with the court involved at key decision points.
Many estates qualify for an even simpler option. Most states offer a small estate affidavit or summary administration for estates under a dollar threshold, which ranges from as low as $5,000 in some states to as high as $300,000 in others.3Justia. Small Estates Laws and Procedures – 50-State Survey A small estate affidavit lets heirs collect bank accounts and personal property with a sworn statement instead of a court case. One important limit: estates that include real property titled solely in the deceased’s name generally don’t qualify, even if the total value is modest. The lawyer figures out which path fits.
Opening the Probate Case and Getting Legal Authority
If probate is needed, the lawyer files a petition with the local probate court asking it to appoint the executor formally. Once the judge approves, the court issues Letters Testamentary (when there’s a will) or Letters of Administration (when there isn’t). These letters are the executor’s proof of authority: without them, no bank or title company will deal with you.
An estate is a separate taxpayer, so the attorney helps the executor obtain an Employer Identification Number from the IRS. The EIN is used to open an estate bank account, file returns, and conduct financial business in the estate’s name. The application lists the executor as the responsible party and the date of death as the estate’s start date.4Internal Revenue Service. Instructions for Form SS-4
The lawyer also handles creditor notice. That usually means publishing a notice in a local newspaper and sending direct notice to known creditors. Publication starts a statutory clock — commonly a few months to six months, depending on state — during which creditors must file claims or lose the right to collect. Botching the notice can delay the case or leave the executor personally exposed.
Sorting Probate Assets from Non-Probate Assets
One of the attorney’s central tasks is separating what the court controls from what passes outside probate. Probate assets include bank accounts in the deceased’s sole name and real estate without a transfer-on-death designation. Non-probate assets — life insurance proceeds, jointly held property, retirement accounts with named beneficiaries — go straight to the designated recipients without court involvement.5Legal Information Institute. Non-Probate Assets The lawyer sorts each asset into the right category so the executor knows what needs court approval and what doesn’t.
Valuations
Federal law requires estate property to be valued at fair market value as of the date of death.6Office of the Law Revision Counsel. 26 US Code 2031 – Definition of Gross Estate The attorney coordinates appraisals for real estate, business interests, collectibles, and anything else without an obvious market price. Those numbers feed both the probate inventory and any tax filings. For larger estates owing federal estate tax, the executor can elect an alternate valuation date six months after death if doing so would reduce both the gross estate and the tax owed.7Office of the Law Revision Counsel. 26 US Code 2032 – Alternate Valuation
Digital Assets
The lawyer also addresses email accounts, social media, cryptocurrency, online banking, and cloud files. Most states have adopted a version of the Revised Uniform Fiduciary Access to Digital Assets Act, which gives executors a legal path to manage these assets but with real limits. An executor generally cannot read the content of private communications unless the deceased specifically authorized it in a will, trust, or an online tool the platform provides. For other digital assets, the executor may need a court order if the deceased left no instructions, and providers can still limit what they turn over, charge fees, or refuse burdensome requests.
Paying Debts in the Order the Law Requires
When creditors file claims, the lawyer reviews each one for legitimacy and advises the executor on what gets paid first. State law sets a strict priority. Categories differ by state, but the general order puts court costs and administrative expenses (including attorney fees) at the top, followed by funeral and burial expenses, then taxes and other government debts, and finally general unsecured debts like credit cards.
The priority rule matters most when the estate can’t pay everyone in full. If the executor pays lower-priority creditors before the higher-priority ones, or distributes assets to beneficiaries before all debts are settled, the executor can be on the hook personally for the shortfall. Getting this sequence right is one of the most valuable things the lawyer does.
Filing the Tax Returns the Estate Owes
Tax compliance is the most technical part of the lawyer’s work. Several returns can be in play, each with its own threshold and deadline.
The Deceased Person’s Final 1040
The attorney coordinates with a tax professional to file the deceased’s final individual income tax return covering January 1 through the date of death. It’s due on the normal April 15 date in the year after the death.
Estate Income Tax (Form 1041)
If the estate earns more than $600 in gross income during administration — from interest, rent, dividends, or asset sales — the executor must file Form 1041.8Internal Revenue Service. Instructions for Form 1041 and Schedules A, B, G, J, and K-1 A calendar-year estate files by April 15 of the following year, though the executor can elect a fiscal year ending in any month within 12 months of death.
Federal Estate Tax (Form 706)
The lawyer checks whether the estate’s total value exceeds the federal estate tax exemption, which is $15,000,000 for decedents dying in 2026.9Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026 Estates above that threshold must file Form 706 within nine months of death, with a six-month extension available if requested before the original deadline.10Internal Revenue Service. Filing Estate and Gift Tax Returns Late filing carries a penalty of 5% of unpaid tax per month, up to 25%.11Internal Revenue Service. Topic No. 653, IRS Notices and Bills, Penalties and Interest Charges
Portability for a Surviving Spouse
Even when the estate falls below the $15,000,000 threshold and owes no estate tax, the lawyer may still recommend filing Form 706 to preserve the deceased spouse’s unused exemption for the surviving spouse. A timely filed Form 706 transfers that unused exclusion, effectively letting the survivor shield up to $30,000,000 from estate tax when they later die. Executors who miss the nine-month deadline can still elect portability within five years of the date of death under a special IRS procedure, as long as the estate wasn’t otherwise required to file.12Internal Revenue Service. Instructions for Form 706 For married couples with substantial assets, skipping this election can cost the survivor millions.
Defending Against Will Contests and Executor Claims
When a family member or other interested party challenges the will, the lawyer stands between them and the executor. The grounds for a contest usually come from a short list:
- Lack of mental capacity: the deceased didn’t understand what they owned, who their beneficiaries were, or what the will would do at the time of signing.
- Undue influence: someone pressured or manipulated the deceased into creating or changing the will in that person’s favor.
- Fraud: the deceased was deceived about what they were signing or what it said.
- Improper execution: the will lacked required formalities, like the proper number of witnesses or a valid signature.
- Revocation: evidence that the deceased meant to cancel or replace the will but never finished the update.
The attorney answers these challenges by gathering medical records, witness testimony, and evidence about the circumstances of the signing. If the executor is personally accused of mismanagement or breach of fiduciary duty, the lawyer defends against those claims by showing the executor followed proper procedure, kept accurate accounts, and acted in the beneficiaries’ interests. Courts are cautious about removing executors and require substantial evidence of misconduct before doing so.
Distributing the Inheritance and Closing the Estate
Before anything goes to beneficiaries, the lawyer prepares a final accounting that shows every dollar in and every dollar out: assets collected, income earned during administration, creditor payments, taxes, and administrative expenses. Beneficiaries get a copy and generally have to approve it before distributions can go forward.
The attorney then drafts the paperwork to move ownership. For real estate, that means deeds conveying title to the heirs. For financial accounts, transfer instructions for banks and brokerages. Each document has to identify the recipient correctly and meet local recording requirements.
Once everything has been distributed and beneficiaries have signed receipts, the lawyer petitions the court to formally discharge the executor. That order closes the probate case and releases the executor from further obligations, giving legal protection against later claims tied to the administration.
What the Lawyer Costs and What the Executor Gets Paid
Estate attorneys usually bill one of two ways. Hourly is the most common. Some offer flat fees for straightforward cases, which gives the executor a predictable number upfront. The method tends to track the estate’s complexity: a simple estate with a clear will and few assets fits a flat fee; contested estates or those with knotty tax questions almost always run hourly.
Attorney fees are administrative expenses of the estate, which means they come out of estate funds before distributions to beneficiaries and ahead of most other debts. The executor is also entitled to compensation. Rates vary by state. Some set a sliding percentage of the estate’s value; others leave the amount to the court as whatever is “reasonable.” Typical executor fees run 2% to 5% of estate value, with higher percentages on smaller estates and lower percentages on larger ones. That compensation is taxable income to whoever receives it.