Common Legal Myths About Working with a Probate Lawyer

By Michael Hackard

When a loved one passes away, families are often left with more questions than answers, and probate is one of the most misunderstood areas of law they’ll encounter.

As an estate and probate litigation attorney with decades of experience, I’ve sat across from grieving children, overwhelmed spouses, and confused executors. I’ve seen how quickly legal myths take root, shaped by well-meaning friends, internet forums, or even pop culture, and how these misconceptions can lead to real-world mistakes, conflict, and costly delays.

Probate isn’t always easy. But the process becomes far more difficult when it’s guided by misinformation instead of law.

This article aims to set the record straight. We’ll explore some of the most common legal myths people believe about working with a probate lawyer, myths that I’ve encountered time and again in my practice, and uncover the truth behind them.

Because when it comes to honoring a loved one’s legacy and protecting family relationships, facts matter. And clarity can mean the difference between peace and years of court battles.

Myth #1: “If There’s a Will, You Don’t Need Probate”

This is one of the most persistent myths in estate law.

Many people believe that having a will avoids the probate process entirely. Unfortunately, this isn’t true.

The Truth:

A will provides direction for how assets should be distributed, but it still must be submitted to the probate court for validation and execution. This is called “probating the will.”

The court reviews the will, confirms its authenticity, and authorizes the executor to begin distributing the estate. Until the court gives that approval, the will alone carries no legal authority.

Some assets, like jointly owned property, retirement accounts with named beneficiaries, or payable-on-death accounts, can pass outside of probate. But everything else? Still needs to go through the process.

A probate lawyer helps ensure the will is properly submitted, the court’s procedures are followed, and that the executor’s actions align with the decedent’s intent and the law.

Myth #2: “Probate Lawyers Are Only Necessary if There’s a Fight”

It’s easy to assume that you only need a probate attorney if there’s a courtroom battle brewing. That assumption has led many executors into trouble.

The Truth:

Probate involves strict deadlines, complex procedures, tax obligations, creditor notifications, and fiduciary duties. Even if there are no disputes, navigating this process without guidance can be overwhelming.

In fact, some of the most serious mistakes happen in quiet estates, where well-meaning executors make missteps that result in personal liability, delays, or unintentional tax consequences.

Examples include:

• Missing filing deadlines

• Failing to notify creditors or heirs

• Mishandling property sales

• Distributing funds before debts are paid

A probate lawyer helps prevent problems before they start. They keep things on track. And most importantly, they protect the executor, who can be held personally liable for mistakes, even if made in good faith.

Myth #3: “Hiring a Lawyer Will Eat Up the Entire Estate”

Concern about legal costs is understandable, especially during probate, when emotions and finances are both fragile. But assuming that a lawyer will automatically drain the estate is a myth that often leads to bigger problems down the road.

The Truth:

Probate lawyers typically charge in three ways:

• Hourly (for complex or contested matters)

• Flat fee (for simple, uncontested estates)

• Statutory fee (as set by law in states like California)

In many cases, the fees are predictable, reasonable, and approved by the court. They are also paid from the estate, not out of pocket by the executor.

The cost of not hiring a lawyer can be far greater: lawsuits between family members, mishandled assets, rejected filings, and prolonged administration.

A good probate lawyer doesn’t increase the cost, they reduce the risk. They save time, reduce liability, and help preserve relationships. The return on that investment is often far greater than the expense.

Myth #4: “Everything Will Automatically Go to the Spouse”

This myth is rooted in a misunderstanding of intestate succession laws, rules that apply when someone dies without a will.

The Truth:

If a person dies without a will (intestate), their estate will be distributed according to their state’s default inheritance laws. And while spouses typically receive a significant portion, they don’t always receive everything.

For example:

• In some states, if the decedent has children from a previous marriage, those children may be entitled to a share.

• In community property states like California, the surviving spouse receives the decedent’s share of community property, but separate property may be divided between the spouse and children or parents.

Without an estate plan, assumptions often lead to disappointment or court battles.

A probate lawyer helps clarify the actual rules in your jurisdiction. And if there is a surviving spouse, they can assist in protecting spousal rights, avoiding unnecessary taxes, and navigating the court process effectively.

Myth #5: “You Can Handle Probate Alone if the Family Gets Along”

It’s comforting to think that harmony among family members eliminates the need for legal support. But the probate process is more than just interpersonal, it’s legal, procedural, and often technical.

The Truth:

Even in loving, cooperative families, problems arise when:

• No one understands how to complete court-required filings

• Tax filings are missed or misunderstood

• Property sales fall through due to improper titling

• Assets are distributed improperly, triggering IRS scrutiny

• Creditors surface with surprise claims

Good intentions don’t prevent legal consequences. A probate lawyer ensures the family’s cooperation is matched with legal compliance and that the process doesn’t unravel due to administrative errors.

Myth #6: “Probate Takes Years No Matter What You Do”

Probate has a reputation for dragging on endlessly. While some cases do take years, particularly those involving litigation or complex assets, many can be resolved efficiently with the right preparation and legal support.

The Truth:

In uncomplicated cases, the probate process can often be completed in 9–18 months. The timeline depends on:

• State procedures and court scheduling

• The completeness of the decedent’s records

• How quickly heirs cooperate

• Whether the executor follows proper protocols

What slows down probate most often?

• Incomplete paperwork

• Missed deadlines

• Family conflict

• Tax issues

• Lack of legal representation

A probate lawyer doesn’t guarantee speed, but they dramatically reduce delays. Their experience means smoother filings, better preparation, and fewer surprises.

For a closer look at how probate disputes actually unfold in California courts, see our blog on Guide to the Process and Stages of Trust and Estate Litigation. It breaks down each phase, from filings to final resolution, and shows why experienced counsel can make the difference between delays and closure.

Myth #7: “A Living Trust Means You Never Need a Probate Lawyer”

It’s true that a properly funded living trust can avoid probate. But that doesn’t mean you won’t need a lawyer, especially when it’s time to administer the trust.

The Truth:

Trust administration comes with its own legal responsibilities. Trustees are fiduciaries and must:

• Provide notice to beneficiaries

• Inventory and manage assets

• Deal with creditors

• Distribute property according to the trust’s terms

• File tax returns

• Maintain accurate records

Mistakes, like early distributions, ignoring creditor claims, or failing to provide accounting, can result in legal action against the trustee.

A probate lawyer who also handles trust administration can ensure the process is executed properly, minimizing risk and honoring the trust creator’s wishes.

Myth #8: “Probate Lawyers Just Fill Out Forms”

In the age of online legal templates and do-it-yourself websites, some assume probate law is as simple as checking boxes and printing documents.

The Truth:

Probate lawyers are not form-fillers. They are risk managers, conflict-preventers, and problem-solvers.

Yes, there are forms. But the real value of a probate attorney lies in:

• Strategy: Knowing which steps to take, and when

• Analysis: Spotting red flags others miss

• Communication: Keeping beneficiaries informed and unified

• Advocacy: Standing up for your rights in court, if needed

Mistakes made at the beginning of probate can have ripple effects for months or years. A good lawyer doesn’t just submit forms, they ensure the entire process stands up to legal scrutiny and moves forward as smoothly as possible.

Myth #9: “You Only Need a Lawyer If You’re the Executor”

It’s true that the executor (or administrator) typically hires the lawyer. But that doesn’t mean they’re the only ones who benefit from legal guidance.

The Truth:

Beneficiaries may also need legal counsel, especially if:

• They believe the will is invalid

• The executor is acting improperly or not communicating

• There are concerns about undue influence or elder abuse

• They want help understanding their rights or options

In some cases, multiple lawyers are involved, one representing the estate, others representing individual beneficiaries or parties in dispute.

Probate lawyers play different roles depending on the circumstances. Whether you’re the executor, a trustee, or an heir, a lawyer can help ensure your interests are protected.

Myth #10: “It’s Too Late to Get a Lawyer Involved Now”

Many people delay hiring a lawyer because they think it’s too late or they’ve already made a mistake.

But in probate, it’s almost never too late to bring in help.

The Truth:

Probate lawyers regularly step in at various stages, including:

• Before filing any paperwork

• After the court has appointed an executor

• When a family dispute erupts mid-process

• During trust administration

• When tax issues or creditor claims arise

• If litigation becomes necessary

Bringing in a lawyer late may cost more than hiring one early, but it’s still far better than going it alone when the process starts to unravel.

And often, an experienced attorney can correct prior missteps, reestablish order, and prevent further escalation.

Real-World Lessons: When Myths Become Mistakes

Let me share a story from my own practice, names changed for privacy.

A client, Daniel, was named executor for his father’s estate. There was a will, and the family was on good terms, so he assumed he could handle probate without legal help.

Daniel missed the deadline to notify creditors. He distributed funds before taxes were paid. And he failed to file an inventory with the court. Months later, a distant creditor appeared and sued the estate, and Daniel personally, for improper handling.

What began as a simple probate turned into a contested nightmare.

Eventually, Daniel retained our firm. We mitigated the damage, resolved creditor claims, and closed the estate, but not before unnecessary stress and expense.

The myth? That cooperation replaces counsel. The lesson? Probate is not something to navigate on instinct.

The Real Cost of Believing Myths

The danger of legal myths isn’t just that they’re wrong, it’s that they feel right. They sound familiar, even comforting. But probate isn’t guided by what feels right. It’s governed by statutes, court procedures, fiduciary responsibilities, and timelines. It’s governed by the law.

And believing the wrong things, no matter how well-intentioned, can come with steep consequences.

When families lean on myths, they delay action. Executors skip necessary filings. Beneficiaries assume they have no voice. Disputes simmer quietly until they erupt. Simple estates become contested. Modest inheritances become mired in litigation. And relationships that could have been preserved fracture under the weight of misunderstanding.

All of this can happen because someone thought they didn’t need a lawyer. Or that probate would sort itself out. Or that “we’re all on the same page.”

As someone who has represented clients through some of the most emotionally charged estate disputes imaginable, I can tell you this: clarity is priceless. Facts are protection. And early legal counsel is often the dividing line between peace and conflict.

The right probate lawyer doesn’t just explain what’s true. They dismantle what’s false. And in doing so, they protect something greater than an estate, they protect the memory of the person who left it behind.

Protecting Legacies, Preventing Myths

Probate is not just a legal process. It’s a deeply human one, shaped by grief, memory, family dynamics, and long-standing emotions.

And in that vulnerable moment, myths can be costly. They can delay healing, divide families, and damage legacies.

The right probate lawyer brings facts to a space too often ruled by fear and fiction. They explain, protect, and guide. They prevent mistakes you never knew you could make, and resolve problems before they become crises.

So if you’ve heard these myths, remember: they’re common, but they’re not correct.

And when it comes to honoring someone’s life, following the law, and preserving peace among the living, nothing matters more than getting it right.

Contact Hackard Law today to discuss your situation with a trusted California probate lawyer.

Michael Hackard is the founding attorney of Hackard Law, a leading California firm focusing on probate, trust, and estate litigation. With over 40 years of experience, he’s helped families across the state protect their legacies and resolve estate disputes with clarity, compassion, and strength.