Who is a probate attorney?
Jimi Hendrix, the legendary guitarist, died without a will in 1970, leaving behind an estate that’s currently valued at more than $160 million. And now, more than five decades later, the bitter battle over its control rages on.
This is a prime example of what could go wrong when people die intestate – or without a will. It leaves your loved ones vulnerable, and more often than not, you’ll have all sorts of people coming out of the woodwork to claim a stake.
You don’t have to be a wealthy celebrity to have a will. If you have any assets that matter a great deal to you, it’s always better to decide while you’re still alive who should get them. If you don’t, then a probate lawyer would have to step in after your death to help your surviving beneficiaries get their share of your estate.
So, what is a probate lawyer, and what can they do for you? Here’s everything you need to know.
What does probate mean?
Probate is a legal term that refers to the process of proving a will. It means making sure that the deceased’s estate is distributed fairly among the rightful heirs, whether or not there was a will left behind.
If there was no will left behind, the process must go through probate court to decide how the assets will be distributed among the deceased’s loved ones. For smaller estates, the probate process doesn’t usually take long. The matter can be concluded in a matter of weeks.
However, probate for bigger estates can take several years, especially when individuals with legitimate claims to the property and assets file petitions in court to contest the will. So, as you can expect, this could end up dragging out the process even longer.
What does a probate lawyer do?
Probate lawyers wear many hats. The exact role they play in a probate process ultimately depends on whether or not the decedent had drafted a will before their death. Here’s what a probate lawyer does in both instances.
The role of a probate attorney when there’s a will
If an individual dies testate or with a legal will, the concerned parties may retain a probate lawyer in an advisory role to offer guidance to the concerned parties. These include the beneficiaries or the estate executor.
For instance, the attorney may inspect the will to check that it wasn’t created under duress or in a way that would contravene the interests and wishes of the person. This is particularly important if the decedent was elderly and suffered from dementia.
The role of a probate attorney when there’s no will
If an individual dies intestate, the decedent’s estate is distributed among the rightful beneficiaries according to the intestacy laws in the state where the property is located. Although these laws vary widely, in most states, the surviving spouse receives all the property.
In such instances, a probate attorney may be hired to help the estate administrator – who plays a similar role to the executor – in the distribution of the assets according to the state laws.
Keep in mind that regardless of what the deceased’s wishes were or the needs of the family members, the probate lawyer can only act within the confines of the state’s intestacy laws.
If one of the deceased’s relatives wants to become the estate’s administrator, the probate lawyer can help file renunciations with the probate court from all the other relatives. A renunciation is a legal statement from all the other beneficiaries renouncing their right to administer the decedent’s estate.
Other roles of a probate lawyer
Aside from that, a probate attorney also helps the administrator/executor to:
Settle the deceased’s bills and debts
Collect and manage life insurance proceeds
Determine whether the estate owes any taxes
Find and secure all the deceased’s assets
Get the decedent’s assets appraised
Manage the estate’s checkbook
Keep in mind that wills and estate planning generally fall within the same area of law. However, there’s a distinct difference between a probate attorney and an estate planning lawyer.
The former works with living clients on how their estates should be administered when they die, while the latter deals with the estate administration process after the individual dies.
So, what percentage does a lawyer get for settling an estate? The answer to this varies widely and will likely depend on the complexity involved in the probate process.
One lawyer may charge you a flat fee while another may prefer to bill you by the hour. However, most charge a percentage of the estate’s value. This could be anywhere between 10 and 40 percent of the settlement amount.
When does an estate have to be probated?
Contrary to what you might believe, not every estate has to go through the probate process. It is only required when there are no other means through which the decedent’s property can be transferred to the estate heirs.
If the individual had taken steps to distribute the assets before death, the estate doesn’t need to be probated. For instance, life insurance policies and retirement accounts usually have a designated beneficiary. These go directly to them on the death of the principal, subsequently by-passing the probate process.
The same goes for bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation and jointly owned assets with survivorship rights. In the latter, the surviving owner automatically inherits the deceased’s share of the property or asset.
In case you’re wondering how to avoid probate, here are three easy steps you can take:
Name beneficiaries on all the accounts that you own. These include bank, brokerage, retirement accounts, and life insurance policies, and pension plans.
Create a trust that leaves your assets and property to your beneficiaries upon your death. This allows for asset distribution without getting the courts involved.
Hold your property jointly with your spouse or partner. That way, ownership automatically passes to them upon your demise.
Things to do before you hire a probate lawyer
Funeral expenses. Sorting through personal possessions. Emotional healing.
Life after the death of a loved one comes with a certain set of challenges. But haggling over property or money shouldn’t be one of them.
According to Forbes, over $30 trillion will be inherited in the next 30 years. And given the money-motivated culture we live in, its no wonder children and grandchildren all have their hands out — waiting for a piece of the estate pie.
Hiring a probate attorney can help avoid many of the issues associated with probating a will. It also gives ailing family members a sense of peace in their final days.
Here are the things to do when hiring a probate attorney and how it might help salvage family ties.
Choose An Estate Planning And Probate Attorney Based On Your Situation
No two wills or estates are exactly the same. Everyone’s wishes are different. And everyone places value on different things. Some people leave property, money, and other valuables to family and friends. While others have more specific requests. Depending on your age, you may need to choose legal guardians for your children in your will.
Find an estate planning and probate attorney that specializes in your type of estate planning. Some lawyers are highly skilled in handling large sums of money or real estate. If you own a family home or business, this type of estate planning and probate lawyer is best.
Many people make the mistake of hiring an attorney who does estate planning and probate “on the side”. Avoid this whenever possible. After all, you wouldn’t hire a dentist who performs cosmetic surgery on the weekends. And you shouldn’t hire an attorney who just dabbles in estate planning. Find a probate attorney experienced in your type of circumstance.
Are They Sympathetic To Your Needs?
Like any other business, an estate planning and probate attorney is providing a service that you’re paying for. But probating a will is about more than just the money side of things.
Find an attorney who is sympathetic, available, and compassionate. If you’re dealing with a probate attorney, it means you’re also dealing with the loss of a loved one.
Emotions are running high. You need a probate attorney who can patiently answer your countless questions without annoyance. Signs that your probate lawyer may not be the best-fit include:
Unanswered phone calls and questions
Making rushed decisions
Not explaining the details of the process
Insensitive to your situation
A quality probate attorney will exhibit the following characteristics:
Sympathetic to your needs and your recent loss
Explains the probate process in detail
Available to answer questions
Doesn’t take sides in the probate process
Forthcoming with all information
Use your gut instinct when choosing an estate probate attorney. While getting through the probate process should be swift and smooth, it shouldn’t be rushed. Don’t be afraid to interview several lawyers before making a final decision.
Collect All Necessary Paperwork
The probate process doesn’t fall squarely on the shoulders of the attorney. You need to bring important and necessary information to the table. The more organized and prepared you are, the smoother the process will go.
This holds true for both before and after the probate process.
If you’ve been named the executor of the will and are entering the probate process, bring these documents to your first meeting:
Copies of the death certificate
Last will and testament and any codicils
Bank statements and other financial documents
A list of your loved one’s assets
A list of the names, addresses, and contact information for individuals named in the will
You may not have all of this information readily available for your first meeting, and that’s okay. But the more information you can collect, the fewer questions your probate lawyer will have.
Be Realistic About Potential Family Resistance
Family drama is all too common during the probate process. Even the most detailed wills are questioned and picked apart based on greed or entitlement.
Do you have a strained relationship with your siblings? Did your loved one leave all of their most valued possessions to a single family member? If you sense there’s trouble ahead when it comes to carrying out your loved one’s wishes, you’re probably right. Sharing this information with the probate attorney is essential.
While you can’t prevent family members from contesting the will, knowing you may meet resistance can help both you and the probate lawyer prepare. You can collect additional documents that support what’s already outlined in the will.
The executor of the will (if it’s you) is responsible for distributing property, money, and assets according to the wishes of the deceased. But they’re also responsible for paying off any debts and creditors of the deceased. This can be a stressful position.
Being named as the executor means the deceased trusted you with carrying out their final wishes. But don’t be surprised if this puts you in a compromising position with other family members.
Understand What Probate Is And If You Can Avoid It
Most people believe that probate is inevitable following the death of a loved one. But this isn’t always the case. Probate is the legal distribution and transfer of assets following someone’s death. And is often used when a person owns property or real estate only listed in their name.
Even if their will leaves the property to a family member, legal steps are required to carry out this inheritance. Probate is common when handling large, complex estates that include property, large sums of money, or multiple assets.
If your loved one created a simple will leaving mostly possessions to family and friends, probate may not be necessary. Avoiding probate means the following:
The ability to keep the proceedings private and out of the court system
Less legal fees and taxes
A more speedy and less complex settlement of the will
A reputable attorney will advise you on whether or not the will in question needs to be probated.
Handle Your Loved One’s Estate With Ease
Handling the death of a loved one is difficult in and of itself. When you add carrying out their final wishes to the mix, it can be emotionally draining.
Hiring a probate attorney can help ease your mind during this difficult time. Finding the right lawyer means the difference between easy probate and a long, drawn-out process.
If you’re sold on the idea of hiring a probate attorney to help you through the Will or probate process, but you’re not sure how to go about hiring the best attorney these are some great tips to follow when hiring a probate lawyer that will ensure that you find the best probate lawyer for you. Ask the right questions. Once you have a few free consultations set up, you want to ask the right questions during these consultations, to make sure that you fully understand the attorney’s qualifications. Ask questions such as:
Do you have any client testimonials?
What would you do in certain situation?
What do you charge?
Check out the reputation. Client testimonials are great ways to get a feel for customer satisfaction, but they’re not the only way. Sometimes, lawyers will only show you the best reviews that they get, not necessarily the reviews that give the most accurate picture of customer satisfaction. For this reason, you should consider asking friends or coworkers for suggestions of probate lawyers that they have used in the past. This feedback will probably be honest and it will come from people that you can trust.
Finding the right probate lawyer can be a difficult process, but it doesn’t have to be! If you follow these tips, you will be able to find the right lawyer for you!
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506