If necessary, probate proceedings begin quickly following the death of a loved one. Probate is a legal proceeding that is used to settle an estate by validating a Will (if the dead had one). If the decedent dies without a Will (or other Estate Plan in place), he or she is said to have died intestate, and the estate must go through probate in this case as well.
Probate may be a long, laborious, and unpleasant process, not to mention costly and time-consuming. After losing a loved one, navigating it on your own can be overwhelming.
You may discover that you do not require the services of a probate attorney. However, if you do, this article will assist you to understand what you should know. We’ll answer all of your questions, from what an estate probate lawyer fee is to what a probate attorney does.
What is Probate?
Probate is the legal word for the process of proving a will. It entails ensuring that the deceased’s inheritance is distributed evenly among the rightful heirs, regardless of whether a will was left behind.
If no will was left behind, the procedure must proceed through probate court to determine how the deceased’s assets will be dispersed among the deceased’s loved ones. The probate process is relatively quick for smaller estates. The case can be resolved in a matter of weeks.
Probate for larger estates, on the other hand, can take several years, especially if persons with valid claims to the property and assets file court petitions to oppose the will. As a result, as you may think, this could prolong the process even further.
Who Is a Probate Lawyer?
In general, probate lawyers, often known as estate or trust lawyers, assist executors of the estate (or “administrators). If there is no will, you will be in charge of the probate process.
They may also assist with estate preparation, such as the creation of wills or living trusts, provide advice on powers of attorney, and even function as executors or administrators.
What Is the Role of a Probate Lawyer?
Here are some of the most frequent tasks that a probate lawyer may assist an executor and beneficiaries with during the probate process:
- Obtaining the earnings of life insurance policies
- locating and protecting estate assets
- Obtaining appraisals for the deceased’s real estate
- Assisting with bill and debt payment
- All paperwork necessary by a probate court must be prepared and filed.
- determining whether or not estate or inheritance taxes are owed and ensuring that those debts are satisfied
- Resolving Income Tax Problems
- Keeping track of the estate checking account
- Transferring assets in the name of the decedent to the appropriate beneficiaries
- After all bills and taxes have been paid, make a final distribution of assets to beneficiaries.
What a probate lawyer does will most likely be determined by whether or not the decedent wrote a will before their death.
When There is a Will
If a person dies with a will, a probate lawyer may be hired to advise parties on various legal concerns, such as the executor of the estate or a beneficiary. For example, an attorney may examine the will to ensure that it was not signed or written under duress (or against the best interests of the individual). Elderly people suffering from dementia, for example, maybe susceptible to undue influence from individuals seeking a share of the estate.
Wills can be challenged for a variety of reasons, while the vast majority of will pass through probate without incident.
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When There Isn’t a Will
You are said to have died “intestate” if you die without having drafted and executed a will.” If this occurs, your inheritance is dispersed in accordance with the intestacy laws of the state in which the property is located, regardless of your desires. For example, under many states’ intestate rules, your surviving spouse receives all of your intestate property if you are married. However, intestacy rules differ greatly from one state to the next.
In these cases, a probate lawyer may be hired to assist the estate administrator (similar to the executor), and the assets will be distributed in accordance with state law. A probate lawyer may assist with some of the responsibilities outlined above but is constrained by state intestacy laws regardless of the preferences of the dead or the needs of family members.
A relative who wishes to be the estate’s administrator must first get what are known as “renunciations.” “from the decedent’s other family members A renunciation is a legal declaration that relinquishes one’s right to administer an estate. A probate attorney can assist the administrator with obtaining and filing these statements with the probate court, as well as assisting the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.).
What To Expect from a Probate Lawyer from a Full-Service Representation?
If you hire a probate lawyer with a full-service representation model, they can help you identify estate assets, gather those assets, file final income, and estate tax returns, pay bills, and make final distributions to heirs. While professional support in this area can be quite beneficial, many of these chores, like contacting banks to gather and transfer assets, are ones that you can perform on your own. By doing some of the work yourself, you can save yourself and the estate a lot of money on legal fees. You should be aware that attorneys who bill for their services on an hourly basis frequently bill in 15-minute increments; thus, every phone call made by your probate lawyer may result in a charge to the estate.
What to Expect from the Limited Representation of a Probate Lawyer?
You might decide that you have the time to handle these estate matters on your own. If that is the case, you should make a plan with your probate lawyer about what to expect and who will handle which tasks. This will prevent duplication of efforts, which will cost you and the estate money, as well as important tasks falling through the cracks. During your initial meeting with the probate lawyer, they should ask you about the decedent’s assets, creditors, and heirs, but you should also have some questions. We recommend that you ask them to educate you on what your responsibilities as executor will be, as well as any other questions you may have about the probate process and your loved one’s estate. This will allow you to personalize your agreement with the attorney to just cover the duties for which you will need assistance.
Will You Require the Services of a Probate Lawyer?
If you read traditional executor advice, the first step is usually “get a lawyer.” And, as you wind up an estate, you may decide that you want legal guidance from an experienced lawyer who is knowledgeable with both state law and how the local probate court works. However, not all executors must entrust a probate court proceeding to a lawyer or even retain a lawyer for limited counsel. If the estate you’re handling doesn’t have any peculiar assets and isn’t too huge, you might be able to get by without the assistance of a lawyer.
To determine whether you can go it alone, ask yourself the following questions. (If you don’t know the answers, consult with a lawyer before agreeing to have the lawyer handle things for you.) The more questions you answer “yes” to, the more probable it is that you will be able to close the estate without the assistance of a professional.
#1. Can the Assets of a Deceased Individual be Transferred Outside of Probate?
The answer depends on how much (if any) probate-avoidance planning the deceased person conducted before death. Ideally, all assets can be transferred to new owners without the need for a probate court. Assets held in joint tenancy, survivorship community property, or tenancy by the entirety are common instances of assets that do not need to go through probate. Assets kept in a living trust can also avoid probate. Probate is also not required for assets named as a beneficiary by the deceased person, such as retirement savings or life insurance policy proceeds.
#2. Is the Estate Eligible for Your State’s “Small Estate” Procedures?
It’s preferable if no probate is necessary at all, but if that isn’t an option, determine whether the estate can employ “Estate procedures for small estates In most states, they include simplified “summary probate” and a fully out-of-court process requiring just the presentation of a simple sworn statement (affidavit) to the person or institution owning the asset. Each state has its own set of laws about which estates can employ the easier procedures. However, in many states, even huge estates (not including non-probate assets) can employ the easier processes.
#3. Are the members in your family getting along?
Will fights are uncommon, but if a family member is threatening to sue over the estate, consult with a lawyer right once. Probate battles drive families apart and can drain a large amount of money from the estate. A lawyer may be able to help you avoid going to court.
#4. Is Your State’s Probate Process Relatively Simple if Probate is Required?
If the state where the deceased individual lived has enacted a set of legislation known as the Uniform Probate Code, probate should be rather simple. Most probates in UPC states are handled with little or no court supervision. Several other states have reduced their procedures without implementing the UPC.
#5. Is the Estate made up entirely of Common Assets, such as a House, Bank, or Brokerage Accounts, vehicles, and Household Goods?
When an estate includes a corporation, commercial real estate, or any other asset that requires particular ongoing management, things become considerably more complicated. If you need to manage, assess, or sell a firm, you should usually seek the advice of a professional; these aren’t occupations for inexperienced people.
#6. Is the estate made up entirely of common assets, such as a house, bank or brokerage accounts, vehicles, and household goods?
When an estate includes a corporation, commercial real estate, or any other asset that requires particular ongoing management, things become considerably more complicated. If you need to manage, assess, or sell a firm, you should usually seek the advice of a professional; these aren’t occupations for inexperienced people.
#7. Is there enough money in the estate to satisfy all of the debts?
You won’t have to figure out which debts to pay if there’s enough money to cover genuine debts (for example, last income taxes, medical expenses from the last sickness, and burial costs), with some leftover for beneficiaries under the will or state law. If your initial research finds that there may not be enough money in the estate to cover debts and taxes, do not pay any invoices until you have obtained legal counsel. Some creditors have priority over others under state law.
#8. Is the estate too modest to be subject to either state or federal estate taxation?
Under current legislation, more than 99.7 percent of all estates do not owe federal estate tax, so you should not be concerned. There is a better (though still modest) probability that the estate will owe a separate state estate tax to the state where the deceased person lived or owned real estate. Nearly 20 states have their own estate taxes, and several of them charge estates worth $1 million or more. If the estate is required to file an estate tax return, either with the IRS or the state taxing authority, you will undoubtedly require competent legal and tax guidance.
When can an Estate be Probated?
Contrary to popular belief, not every estate must go through the probate process. It is only required when there are no alternative options for transferring the decedent’s possessions to the estate heirs.
The estate does not need to be probated if the individual took action to disperse the assets before death. Life insurance policies and retirement accounts, for example, frequently have a designated beneficiary. When the man dies, these go directly to them, bypassing the probate process.
Bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation, as well as jointly owned assets with survivorship rights, are similarly affected. The surviving owner automatically inherits the deceased’s part of the property or asset in the latter case.
If you’re wondering how to avoid probate, here are three simple actions to take:
- Name beneficiaries on all of your accounts. These include bank accounts, brokerage accounts, retirement plans, life insurance policies, and pension schemes.
- Make a trust that will pass your assets and property to your beneficiaries when you die. This allows for asset distribution without involving the courts.
- Jointly own your property with your spouse or partner. As a result, following your death, ownership immediately goes to them.
How to Choose the Best Probate Lawyer
Look for more than just legal expertise while looking for a probate attorney.
If you’re appointed executor, you may want to consult with a lawyer, either to answer a few inquiries or to execute a probate administration. Because this is a big decision, it’s a good idea to interview several people before settling on one. Of course, you’ll talk with this lawyer on financial and legal issues, but also on very personal ones. You want to locate someone with whom you feel at ease.
You are not required to engage the attorney who drafted the deceased person’s will; the fact that the deceased person used a certain lawyer does not bind you to hire the same person to represent the estate. If that lawyer still possesses the original signed will, he or she is required to send it over to you, as executor.
Identifying Candidates for Interviews
It is usually not difficult to obtain the contact information for a local lawyer or two who handle probates and estates. Probates are typically profitable for lawyers, therefore they are eager to accept the task.
You should be able to get some leads through Nolo’s Lawyer Directory. Read their profiles, which will tell you about each lawyer’s experience and perspective, to get a sense of how they would work with you and who would be a good fit. Before proceeding, if you obtain the names of lawyers from the phone book or a listing, try to speak with people who know or have worked with the lawyer to learn as much as you can about the lawyer.
Interviewing the Probate lawyer
When you initially meet with a lawyer you’re considering employing, make it obvious that you intend to consult with several lawyers before engaging one for estate work. Then, before you get into the specifics of a probate court procedure, attempt to ask some questions. A lawyer who has handled a lot of probates may presume you’re on board and begin asking you for paperwork and information right away.
Questions to Ask a Probate Attorney
If you do decide to hire a probate attorney, there are a few things you should know first. Asking the probate lawyer questions ahead of time will ensure that there are no (expensive) surprises along the way. Use the list below to help you identify an attorney who will be a good fit for your specific circumstances.
- “How long have you been conducting estate planning or probate law?”
Obviously, the more experience he or she has in getting the task done swiftly and efficiently, the longer he or she has been in practice.
- “Do you have any other areas of law that you practice?”
An attorney may be able to take on probate issues, although he or she may more frequently practice in a completely different area of law. If they are unfamiliar with the subtleties of estate law, you may wind up paying the price, both literally and metaphorically, as costly and timely delays may come from their lack of experience.
- “Have you practiced in front of the court where my case will be assigned?”
Judges and counties will have slightly different regulations and procedures in place. Finding a probate attorney who is familiar with the preferences of a court can make the procedure go much more smoothly.
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- “How long do you expect my lawsuit to take before the estate is settled?”
This one can vary greatly. It is unusual for a probate proceeding to take years, although it has happened. The longer things take, the more expensive they can get; knowing ahead of time how long your attorney expects the procedure to take might be beneficial (particularly if they will be charging you hourly). Keep in mind that there may be unplanned delays.
- “Have you already handled instances comparable to mine?”
It can be helpful to know your attorney’s experience, especially if your case is complicated or the estate is huge. This could be the most crucial question you ask.
- “How much do you charge?”
Make sure you have a clear grasp of the fees. Is he or she going to charge a flat fee? A percentage of the estate’s value? Hourly?
If you have a substantial estate worth millions of dollars, you may need to consider state or federal estate tax. If state or federal estate tax returns must be filed, you’ll want to be certain you’re hiring someone with specialized knowledge. Inquire about certain taxes specifically, such as:
- Will you prepare state or federal estate tax returns if they are required?
How many estate tax returns have you completed thus far?
Choosing an Attorney Who Is a Good Fit for You
Choosing a local attorney who is knowledgeable and competent in managing probate court proceedings may not be the most difficult aspect of finding the correct lawyer. Most probate matters aren’t hard; they do necessitate close attention to detail, but you don’t need to be a courtroom star to handle them. The majority of probates are nearly completely comprised of routine paperwork. And if you’re interviewing lawyers who have come highly recommended by friends or other local professionals, they’re definitely competent.
An effective working relationship with a lawyer, on the other hand, involves more than just legal expertise. So consider how well the lawyer explains the process, how well the lawyer listens to your concerns, and how respectful the lawyer is. Make certain that you are signing up with someone who:
#1. Communicates effectively.
Some lawyers just don’t appear to be able to communicate in plain English. Look elsewhere if you can’t understand what the lawyer is saying and don’t get good explanations when you ask for clarification.
#2. Your attempts to educate oneself are admired.
If you’re doing your best to learn about your responsibilities as an executor—and possibly do some of the work yourself to save on fees—you want a lawyer who will cooperate respectfully.
Finally, don’t make a decision until you’ve spoken with two or three candidates. Tell the lawyer that you’ll call back shortly with your decision.
Fees for a Probate Lawyer
A probate attorney fee range will vary because they can charge by the hour or a flat fee, and in some areas, fees are determined by the amount of the estate.
Among the states that permit a percentage-of-value fee are:
- Arkansas
- California
- Florida
- Iowa
- Missouri
- Montana
- Wyoming
As an example:
- Fees in California are as follows:
- For the first $100,000, the interest rate is 4%.
- 3% of the following $100,000
- 2% of the following $800,000
- 1% of the next $9 million
- 12 percent of the next $15 million
- a “fair amount” for estates worth more than $25 million
- Fees in Florida are as follows:
- $1,500 – $3,000 for estates ranging from $40,000 to less than $100,000
- 3% for estates worth $100,000 to $900,000
- 2.5 percent for estates between $1 million to $3 million
- 2% for estates valued at $1 million or more $3-$5 million
- 12 percent for estates valued at $1 million or more $5-$10 million
Is a Probate Lawyer the same as an Estate Attorney?
A probate lawyer, often known as an estate attorney, will be involved in various ways depending on the circumstances of the estate. Their involvement will be determined by the value of the decedent’s assets and whether or not they had a last will and testament when they died. In the absence of a will, beneficiaries submit claims and sue for what they believe they are entitled to. When there is a will, challenges to the legitimacy of the will may emerge, perhaps leading to litigation.
What is the process for working with a probate lawyer and what can I expect?
The first step in working with a probate lawyer is to schedule a consultation to go over your case details and get a feel for whether or not the attorney is a good fit. The attorney will then collect information about your estate and any pertinent legal documents, and stand by your side as you go through probate. Your probate attorney should be well-versed in probate law and procedure and able to answer any questions you may have in plain English.
How can a probate lawyer help with transferring assets to beneficiaries?
By representing you in any necessary court proceedings and advising you on the legal process for transferring assets to beneficiaries, a probate attorney can ease the burden of distributing your estate. As part of this process, you may be asked to review and prepare transfer documents, interact with financial institutions, and guarantee that all required legal steps are taken to effectuate the transfer.
How can a probate lawyer help with settling a deceased person’s debts?
An experienced probate attorney can guide you through the legal steps required to settle a decedent’s debts and advocate on their behalf in court. To accomplish this, it may be necessary to negotiate with creditors, set up payment plans, and take any and all legal action required to settle the debts.
How can a probate lawyer help with transferring assets to beneficiaries?
When it comes time to distribute assets to beneficiaries, a probate attorney can provide guidance on the legal requirements and represent your interests in any necessary court proceedings. Making sure all the legal hoops are jumped through, communicating with financial institutions, and reviewing and preparing transfer documents are all examples of what might fall under this category.
What are some common probate law issues that a probate lawyer can help with?
Probate lawyers are able to assist clients with a wide variety of legal matters pertaining to the administration of estates, including but not limited to: will contests, trust administration, guardianship and conservatorship cases, power of attorney and advanced directive disputes, estate taxes, and probate litigation. To make sure your rights and interests are safeguarded, you should seek the advice of a probate attorney who is familiar with the legal requirements and processes associated with these and other matters of probate law.
How can a probate lawyer help with probate litigation?
Having a lawyer on your side in the event of a legal dispute during probate can be a huge help. To do so, they might explain your legal options, draft and file the necessary paperwork, and even represent you in court. Lawyers specializing in probate law know their way around the court system and can help you settle any disputes that may arise.
Probate Lawyer FAQs
What does a probate lawyer do for you?
A probate lawyer advises the executor of a will or the beneficiaries of an estate through the probate process, from identifying estate assets and beneficiaries through distributing assets and inheritances.
How much does a probate lawyer cost?
The expenses might soon add up. Hiring an attorney is one of the most expensive aspects of the probate procedure for many families. For straightforward situations, a probate attorney typically charges between $3500 and $7000.
What is the difference between an estate lawyer and a probate lawyer?
People often engage an estate planning lawyer before death to assist them in splitting their estate and assets, whereas a probate lawyer can assist the estate administrator and family in overseeing the validity and administration of a will in probate court after a person has died away.
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