6 Steps To Hire A Probate Attorney

When a person dies, they leave behind memories for their loved ones to cherish. They also typically leave behind an “estate,” which consists of property, bank accounts, and other assets. They may also leave behind debts—sometimes substantial ones. If the person drafted and signed a will, and if the terms of the will and dynamics among the beneficiaries are fairly simple and straightforward, the will’s executor may be able to distribute the estate easily. But if there is no will, or no beneficiaries, or if the decedent has left unpaid debts, the process of probate will be needed to facilitate the settling of debts and/or the distribution of the estate. Probate is also needed to transfer ownership of property to a beneficiary if the property was solely owned by the decedent. And when probate is required, hiring a probate attorney is a good idea. A lawyer who deals with probate will know how to manage estate taxes, access all the estate’s assets, file probate documents correctly, and act as a buffer between feuding family members, if needed. And, most importantly to many who make the wise decision to enlist legal counsel for probate, a probate lawyer can expedite the notoriously slow probate process, and bring closure and peace of mind to everyone involved. Here is how to hire and work with a probate attorney.

  1. Determine if you need help fulfilling the deceased person’s wishes.
  2. Understand what a probate attorney does.
  3. Start your attorney search, and ask these essential questions.
  4. Find out how much you’ll pay—and take advantage of your tax deduction.
  5. Prepare for your first meeting.
  6. Get the closure you deserve.

Let’s look closer at each step of the attorney-hiring process.

Determine if you need help fulfilling the deceased person’s wishes.

If a relative or a person close to you has died, you may need help dealing with that person’s assets and debts. This is especially true in these kinds of situations:

  • You have been named executor in a will
  • There is conflict among family members over distribution of assets
  • You need to sell estate property
  • You are not executor of the will or estate, but you believe the executor is not doing a good job

Small estates that hold conventional assets, such as a home, vehicle, and financial accounts, often are easier to settle, especially if family members are in agreement and the decedent resided in a state that follows the Uniform Probate Code. However, things can become complicated very quickly if there are disputes, substantial debts, or high-value assets that may trigger estate taxes.

ExperTip: If you’ve been named executor of a will, find out if your state is a Uniform Probate Code (UPC) state. At time of writing, 19 states have adopted this code, which simplifies and updates many components of state probate law. Most probates in UPC states are informal, involving some paperwork, but no court hearings. In non-UPC states, the probate process requires significantly more work on the part of the executor, including publishing and mailing probate notices, proving the validity of the will, and posting a bond (if required by the court) to protect the estate from losses you may cause.

Understand what a probate attorney does.

Probate attorneys focus on estate planning, wills, and trusts, but there are significant differences in their areas of expertise.

  • Transactional attorneys handle administrative proceedings, such as notifying heirs and creditors, representing clients in probate court, and distributing property.
  • Probate litigators handle lawsuits and disputes involving contested estates.

Ideally, probate and estate planning should be the attorney’s primary practice area. Prospective clients should check online reviews and testimonials and look for information about an attorney’s professional-association memberships before making a hiring decision. Most probate lawyers offer free consultations, or charge a nominal fee for an initial consultation. The consultation is a good opportunity to ask questions, request referrals to past clients, and discuss the probate attorney’s case history and successes.

Start your attorney search, and ask these essential questions.

Establishing an attorney’s credentials is the primary goal of an initial consultation. You should determine whether probate is the firm’s primary practice area. You should also find out whether the attorney practices in the county’s probate court often and whether the person has handled similar cases in the past. Here are a few other helpful questions:

  1. Is probate required to settle this estate?
  2. How long will the probate process take?
  3. What issues may arise when settling the estate?
  4. Is it easy to reach an attorney or paralegal if I have questions?
  5. What type of fee structure does the firm use?
  6. Will you help me if conflicts with beneficiaries or family members arise?

Find out how much you’ll payand how much you’ll get back.

Hourly rates for probate attorneys typically start around $150 and are billed in fractional increments. However, some lawyers may represent clients for a flat rate. Before going this route, it’s essential to determine what is and isn’t covered. Probate attorneys in seven states, including California and Florida, can base their fees on the value of the estate. Typical rates range from 2% to 7% of the estate’s gross value. In addition to attorney fees, you will be responsible for probate costs, which may include court fees, appraisal fees, and recording fees for property deeds.

Note that attorney fees and other administrative expenses are tax deductible provided they’re necessary for paying debts, collecting assets, or distributing funds to heirs. Estates can also deduct funeral or burial expenses, charitable donations made after death, and outstanding debts. State-level inheritance taxes may also qualify for federal tax deductions. The cost of hiring an accountant or other professional may also be tax deductible.

ExperTip: Find out if you will be compensated for your duties as a personal representative (aka executor). Some wills specify an amount the personal representative should be paid, while others leave it up state law. Though the percentage varies from state to state, many states specify that the personal representative should be paid 1% to 4% of the estate’s gross value—and this percentage goes down as the total estate value goes up.

Prepare for your meeting with the attorney.

For efficiency and convenience, prospective clients need to be adequately prepared for their first meeting with a probate attorney. A lawyer may need the following documents to assess the case accurately:

  • The decedent’s will
  • The decedent’s trust documents
  • Estate planning documents
  • Contact information for beneficiaries
  • The decedent’s recent tax returns
  • Records of debts and assets
  • Insurance policies
  • Property deeds
  • Death certificate

Get the closure you deserve.

Probate is considered closed once the executor feels they’ve uncovered all assets and debts belonging to the deceased individual and a final accounting has been completed. One vital service a probate attorney provides is accessing these assets and debts, which may not be evident to an executor who has never been involved in this kind of process before. However, it’s important to note that estates don’t typically close, and the executor is required to continue representing the estate indefinitely. That means if additional assets are uncovered several months or even years later, it continues to be the executor’s responsibility to report those assets to the court. If an executor no longer wishes to be responsible for the estate, they can request a release of liability from the court or the estate’s heirs. Again, the role of the probate attorney is to execute the probate process efficiently and completely, to help ensure that the executor isn’t excessively burdened for years to come.

Ready to speak to a lawyer? Here is our list of the best probate attorneys near you.

 Disclaimer

The materials provided in this article are for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the links contained in the article do not create an attorney-client relationship between the author and the user or browser. You should contact your attorney to obtain advice with respect to any particular issue or problem.