When a person dies, the administration of their property must be done according to the deceased’s will. In cases where the deceased had no will, the government has the mandate to determine the beneficiaries of the deceased’s estate. In most cases, the deceased’s assets will be the property/estate they owned including their main residence. The idea of disposing of property is what often leaves executors of the will with much thought. This calls for them to obtain permission to legally wind up the deceased’s estate. This is where probate comes in.
Probate refers to the process of making sure that the terms of the will are executed as indicated in the will.
It is the official legal document that executors of the will require to wind up the estate of the deceased. This document is usually issued to executors whose names appear in the will or close family members in the case where there is no will. It serves as a confirmation of their legitimacy to administer the estate. It may be referred to as Grant of Probate where the deceased had a will or Grant of Letters of Administration where there was no will.
What Does A Probate Lawyer Do In Taylorsville, Utah
When a person passes away, their assets must be disbursed in a manner consistent with state laws and following the directions they put forth when they were alive, as stated in their will. A probate lawyer guides the executor of will or beneficiaries of an estate through the probate process: From identifying estate assets and beneficiaries to distributing assets and inheritances. A probate lawyer is a state licensed attorney who works with the executors and the beneficiaries of an estate to settle the affairs of the decedent. In some instances, probate can be avoided if all the decedent’s assets have been placed in a trust. A trust can ensure a smooth transfer of property outside of court and legal proceedings. A probate lawyer is also known as an estate attorney and will be involved in different ways depending on the particular circumstances of that estate. Their involvement will depend on the value of the decedent’s assets and whether or not they had a last will and testament at the time they passed away. In cases where no will exists, beneficiaries file claims and sue for what they believe they are entitled to. In situations where there is a will, challenges may arise as to the validity of the will, also leading to possible litigation. Specifically, here are some of the common tasks a probate lawyer may assist an executor and beneficiaries with during the probate process:
• Collecting proceeds from life insurance policies
• Identifying and securing estate assets
• Obtaining appraisals for the decedent’s real property
• Assisting in the payment of bills and debts
• Preparing and filing all documents required by a probate court
• Determining if any estate or inheritance taxes are due, and making sure those debts are satisfied
• Resolving income tax issues
• Managing the estate checking account
• Transferring assets in the decedent’s name to the appropriate beneficiaries
• Making a final disbursement of assets to beneficiaries after all bills and taxes have been paid
Paying a Probate Lawyer: Costs & Types of Fees
One of the reasons that many people find hiring a probate lawyer intimidating is that there’s no price tag in sight. Many clients literally have no idea how much they might end up owing. But the process doesn’t have to be so mysterious. If you’ve found that you need expert help, first become familiar with the different ways lawyers charge. Second, protect yourself by getting a written fee agreement from the lawyer.
Who Pays
Remember that the estate pays the probate lawyer’s fee—it doesn’t come out of the executor’s pocket. Of course, if you are both the executor and the only inheritor, then the fee does, in essence, come out of money that is soon to belong to you. Otherwise, the cost is taken from the estate before assets are distributed to the people who inherit them.
Probate “Costs” or “Expenses” vs. Legal Fees
Costs are how lawyers refer to all the miscellaneous expenses that arise during a probate or other court proceeding. They can add up to a considerable sum, depending on the circumstances. Some examples include court filing fee, postage, publication of legal notices in the newspaper, property appraisals, and recording fee for real estate deeds. There are three main ways that lawyers charge for probate work; legal communities in different parts of the country have different customs. The lawyer may also offer you a choice of ways to calculate the bill.
By the Hour
Probably the most common way for probate lawyers to charge clients is to bill by the hour. Hourly rates vary depending on where you live and how experienced (and busy) the lawyer is. In a rural area, you might be billed $150/hour; in urban areas, you’re more likely to see rates of $200/hour and up. Specialists charge more per hour than do general practitioners, but they’re likely to be more efficient. If they’ve filed probate paperwork a hundred times in the local court, they’ve probably figured out how to do it quickly and in a way the court will accept. Because so much of the typical probate case is just standard paperwork, most attorneys use paralegals to help them. Paralegals aren’t lawyers, but they’ve had special training or have simply learned from the attorney how to prepare certain documents. The attorney supervises their work and typically bills their time at a lower rate.
Flat Fee
Another popular billing method is the flat fee. An attorney who’s done a lot of probates knows about how long the work takes, and charging a lump sum means the attorney doesn’t have to keep careful records of how the lawyers and paralegals spend their time. Some attorneys also find that clients are more relaxed and comfortable dealing with the attorney when they know the meter isn’t always running. If you are quoted a flat fee, make sure you understand what it covers. It likely won’t include extra costs such as court filing costs or appraiser’s fees. And if you have a complicated case involving a will contest or an estate tax return, for example; the fee will go higher.
Percentage of the Estate
In a few states, lawyers are authorized by law to collect a percentage of the value of the estate as their fee. They’re not required to do so you are free to negotiate an hourly rate or flat fee with them. But many prefer it because it usually pays so well in relation to the amount of work actually required. One of the reasons these fees are so often unreasonable under the circumstances is that they are based on the gross value of the probate assets, not the actual net value. For example, if the estate contains a house worth $300,000, but there’s still $100,000 left on the mortgage, the lawyer’s fee is based on $300,000 not the $200,000 of equity. Also, it’s not usually more difficult to prepare probate paperwork for a $700,000 house than it is to prepare it for a $150,000 house—so why should the fee be so different?
Just for an example, take a look at Taylorsville’s statutory fee schedule:
• 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
• ½% of the next 15 million
• “a reasonable amount” of anything over $25 million
A probate estate with a gross value of $500,000 would generate $13,000 in legal fees. If you were paying by the hour, you could get a lot of hours of the attorney’s work for that much money.
Protecting Yourself: Fee Agreements
When you hire an attorney on behalf of the estate, get a fee agreement in writing. It’s required by law in some states, and it’s a good idea no matter where you are. The agreement should state: the hourly fee of each lawyer and paralegal who may do work for you, an estimate of the total cost or number of hours, other costs you may need to pay (including court fees, postage, publication and so on), how often you will be billed, when payment will be due, and how detailed the bill will be (each item should be described, so you don’t just get a bill for unspecified “legal services”). As an executor of a Will and having Grant of Letters of Administration, you have the responsibility of managing the estate of the deceased efficiently. You may have to liquidate the assets before distributing the assets according to the will or in some cases pay up inheritance tax that may be due.
This means you first need to establish the value of the property before calculating the value of the estate for Inheritance Tax Purposes, therefore, it makes sense to get the property on the market even before being granted probate. Here, you can engage a qualified estate agent to give you a valuation of the property. The Revenue Office recommends that you obtain at least three valuation reports. Make sure you inform the estate agent that the property is in a probate sale as this helps to manage the expectations of potential buyers.
The value of the property wills often for a significant part of the worth of the deceased’s entire estate that includes investments, cash, contents from the property and insurance. Before anything else, it is important to establish if the deceased has any outstanding debts that are also referred to as liabilities. This includes utility bills, the funeral account as well as Council Tax and any other sums owed to friends or family members.
These (liabilities) will be deducted from the worth of the assets held. It is then that a determination can be made on whether any Inheritance Tax is payable. This forms part of the overall process of applying for a grant hence the need to ensure the accuracy of all the figures that are provided. In some cases, you will have to do some work on the property before putting it up on the market. It could be that the property needs good airing and cleaning, planting some flowers to brighten it up or giving it a new coat of paint. All these efforts will ensure that you fetch the best price. Once you are ready, you must engage a conveyancing solicitor to carry on with the sale of the property. Make sure they know that they are dealing with a Probate sale just so that they are aware. When you finally obtain the Grant of Probate, you can go ahead and exchange contracts. At this point, the buyer is legally bound to purchase the property. This means that you have secured a sale. In the buyer pulls out, they will incur a fee.
Probate is needed in cases where the deceased was the sole owner of the property. If you need to sell property in such a situation, you can go ahead and list it on the market and even accept offers before obtaining the Grant of Probate. However, you can’t complete the sale until you receive the probate. There are unique circumstances where the property may be sold without probate. For instance, if the deceased had a partner or spouse with whom they jointly owned the property and whose name appears on the title deeds, then the property may be sold off if the surviving partner would like it to be disposed of. If the deceased was a tenant in common with another person with separate percentage shares, the property will be part of their estate. Consequently, it has to be passed on to those that are entitled to inherit as per the Will or Rules of Intestacy in cases where there was no Will. In this case, probate will be needed. In cases where the deceased was a joint tenant hence neither person owned a specific share of the property, neither is probate required not the property sold. Instead, the property is automatically transferred to the surviving owner.
While some executors go ahead and exchange contracts in the absence of the Grant of Probate, this is not right hence a rare practice. Contracts should be exchanged only after obtaining probate. The only time executors can exchange contracts without probate is if they are sure the Grant of Probate will be issued in time for completion. Even then, this option too is considered to be high risk.
Selling a property that is under probate can sometimes be challenging because of the following reasons:
• As explained in the process of selling probate property above, it has the potential of creating a financial problem because you will need to first pay Inheritance Tax (where applicable), probate fees, maintenance costs along with other out of pocket expenses before obtaining probate after which you can reclaim these costs from the estate.
• The whole process involves so much bureaucracy than would a normal property sale.
• It can be a problem having to maintain probate property before and after the grant of probate.
The process of selling a house that is under probate is usually different from the normal house sale process. Not only will you need to have the Grant of Probate (depending on the circumstances) but also have to bear with the lengthy duration it may take before you dispose of the property. This is because the process of granting probate could go on for between 12 and 14 weeks which may be followed by another couple of months for the sale process to go through. Once you complete the process, you can sell through an estate agent in the normal way or opt for a property auction. The other alternative would be to sell the property to a cash buyer.
The Probate Process in Taylorsville, Utah.
• Filing: Once a will has been located, the first step in the probate process is filing a petition with the probate court requesting that the will be probated. The probate petition asks that the executor formally be appointed to act on behalf of the estate. All heirs and beneficiaries must receive notice that the petition has been filed. This allows them to object to the petition and challenge the will. In some states, a notice of the petition must also be published in a newspaper of record so that potential creditors can receive notice. If there is no will, a petition is filed seeking administration of the estate, and a notice of administration must be given to all legal heirs. The person filing the petition requests that the court appoint them as the estate’s personal representative, a role similar to that of executor.
• Identifying Assets and Debts: Once the court has appointed the executor or personal representative, they must identify and disclose all of the estate’s assets and provide a valuation. Assets include real estate, vehicles, investments, bank accounts, cash, personal property, intellectual property, and pets. The executor takes legal control of these assets. On the other hand, assets owned by a trust, such as a living trust, are not probate assets and are not distributed by the probate court. The executor or personal representative must inform all known creditors of the estate proceeding. Creditors have a specific time frame in which they must file their claims against the estate. All known debts must be identified and disclosed to the court.
• Payment of Debts: The executor or personal representative must pay all of the estate’s debts from the estate’s assets. In addition to pre-existing debts such as loans, mortgages, utility bills, and credit cards, a final tax return must be filed for the estate, and any taxes due must be paid. Funeral expenses must also be paid.
• Distribution of Assets: Once all of the creditors have been paid, the executor or personal representative distributes the remaining assets according to the testator’s wishes if there is a will or according to state intestacy statutes if there is no will. This may require formal ownership transfers via deeds or titles for things like real property and vehicles. If the will requires establishing a trust, the executor must set one up according to the instructions included in the will. A final accounting of the estate must be provided to the court, detailing all of the assets and debts and how the property was distributed. The entire probate process can take a few months to a year or longer, depending on the estate’s complexity and the court’s calendar. Successfully wrapping up an estate through probate requires attention to detail and a methodical approach to the steps involved.
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
Recent Posts
Estate Planning Attorney American Fork Utah
Estate Planning Attorney Brigham City Utah
Estate Planning Attorney Cedar City Utah
Divorce Lawyer and Family Law Attorneys
Ascent Law St. George Utah Office
Ascent Law Ogden Utah Office
Taylorsville, Utah
Taylorsville is a city in Salt Lake County, Utah. It is part of the Salt Lake City metropolitan area. The population was 60,448 at the time of the 2020 census. Taylorsville was incorporated from the Taylorsville–Bennion CDP and portions of the Kearns metro township on July 1, 1996. The city is located adjacent to Interstate 215 and Bangerter Highway. It is located in the middle of the Salt Lake Valley.
[geocentric_weather id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_about id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_neighborhoods id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_thingstodo id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_busstops id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_mapembed id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_drivingdirections id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
[geocentric_reviews id=”ae7d9be7-8fc3-453f-9c25-0ba7410d98f8″]
