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What Is a Probate Lawyer & When You May Want to Hire One

Probate, a customary legal procedure for validating a will and distributing assets, is often encountered in various situations. Despite its common occurrence, enlisting the services of a probate lawyer can prove highly beneficial in ensuring a smoother process for you and your family. Please continue reading to gain insights into probate lawyers’ roles and functions and why opting for their expertise can be prudent.

What Is a Probate Lawyer?

A probate lawyer is a specialized attorney who assists the estate’s executor or the beneficiaries in navigating the probate procedure. Depending on the situation, their involvement can range from offering guidance and counsel to actively participating in the administration of the estate, including the distribution of assets and inheritances. The extent of the probate lawyer’s role is contingent on the unique circumstances of each estate.

Probate lawyer vs. estate planning attorney

A probate lawyer and an estate planning attorney operate within the realm of estate law, but they serve distinct purposes. The primary contrast lies in their focus and clientele. A probate lawyer assists families in navigating the process of settling an estate after losing a loved one. Conversely, an estate planning attorney works with living clients to aid them in devising their estate plans. Occasionally, a probate lawyer can also fulfill the role of an estate lawyer, providing services related to estate planning.

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What Does a Probate Lawyer Do?

The responsibilities and duties of a probate attorney encompass a broad spectrum of tasks. The specific actions undertaken by the probate lawyer are contingent on various factors, including the requirements of the executor or administrator, the presence of a will left by the deceased, the complexity of the estate, potential legal disputes from beneficiaries or debtors, and any other intricacies associated with the estate’s assets and affairs. The estate’s unique circumstances shape the role of the probate attorney.

When There Is a Will

When a deceased individual has a legally valid and signed last will, a probate lawyer can be engaged to provide consultation and guidance to the administrator throughout the probate process by the will’s provisions.

However, suppose a dispute arises regarding the will’s validity, such as a beneficiary believing it invalid, signed under coercion, or influenced by external factors. In that case, the probate attorney may undertake the role of representing a party in probate litigation. This could involve contesting the exclusion of a beneficiary from the will or addressing various other reasons that might lead to a challenge (although most will typically proceed through probate without issues). The probate attorney’s involvement may transition from a consultative function to actively advocating for their client’s interests in such contested scenarios.

When There Is No Will

If the deceased person did not leave a valid, written will, their status is “intestate.” In such cases, the state’s inheritance laws determine the distribution of assets. These laws vary widely and may entitle a surviving spouse to either all or a portion of the deceased spouse’s property, depending on the specific intestate laws of the state.

It is crucial to understand that the probate lawyer and the estate administrator are legally obligated to adhere to state intestacy laws when distributing the property. Irrespective of any verbal statements made by the deceased during their lifetime or the financial needs of certain family members, the state law governs the allocation of estate assets.

Under these circumstances, a probate lawyer can assist a loved one in seeking a court appointment as the estate administrator. Alternatively, they may be engaged after the person appointed as the administrator by the probate court judge.

For a relative aspiring to become the estate’s administrator, the first step involves obtaining “renunciations” from other relatives of the decedent. A renunciation is a formal statement relinquishing one’s right to administer the estate. A probate attorney can aid in obtaining and filing these statements with the probate court and subsequently assist the appointed administrator throughout the probate process.

What Is the Role of a Probate Lawyer?

A probate attorney can be hired for various purposes, either solely to offer legal counsel or to undertake multiple essential tasks. When the executor or administrator resides in another state, they rely heavily on a local probate attorney and their team. Some law firms specialize in providing comprehensive services tailored to this specific circumstance.

The tasks a probate attorney may perform include:

  1. Locating, cataloging, and safeguarding the decedent’s estate, encompassing savings accounts, checking accounts, real property, vehicles, and other assets.
  2. We are identifying and processing life insurance policies.
  3. I am obtaining appraisals for the decedent’s assets.
  4. Managing the estate’s financial transactions.
  5. I am setting up a tax account or collaborating with an in-house accountant to handle the final income tax filing of the deceased individual and estate tax returns.
  6. We assess the validity of specific debts and offer advice on debt settlement.
  7. We are preparing and filing the necessary documents as the probate court requires.

How Much Do Probate Lawyers Charge?

Probate lawyers employ one of three methods to determine their fees when working with clients:

  1. Hourly Rate: Some probate lawyers charge their clients based on the hours spent providing legal services.
  2. Flat Fee: Certain probate lawyers offer a fixed, upfront fee for handling the entire probate process, regardless of the time spent.
  3. Percentage of Estate’s Value: In some cases, probate lawyers may receive a percentage of the estate’s total value as compensation.

The specific amount of fees charged by the probate lawyer will vary depending on factors such as their level of experience, the prevailing rates in the region where they practice, and the complexity of the legal matters to be addressed.

Why may you need a probate attorney?

Not everyone responsible for settling a loved one’s estate will necessarily require the services of a probate lawyer. The decision to engage a probate lawyer, or any other professional, hinges upon the specific requirements of the estate.

To determine whether hiring a probate lawyer is necessary, consider the following questions:

  1. Can the estate be distributed without going through the probate process?
  2. Do you have prior experience in settling an estate?
  3. Does your state offer any simplified probate procedures?
  4. Are family members cooperating and getting along with each other during the process?
  5. Is the probate process in your state relatively straightforward?
  6. Does the estate primarily consist of common assets?
  7. Does the estate possess sufficient funds to settle debts?

Suppose your responses indicate that you answered “no” to some or all of these questions. In that case, it might be prudent to consider enlisting the assistance of a probate lawyer to facilitate the administration of your loved one’s estate. You may also want to contemplate purchasing legal insurance, which can provide access to a network of lawyers skilled in estate planning matters, offering added preparedness for any legal requirements.

What Questions Should You Ask a Probate Lawyer?

If you opt to hire a lawyer for a probate case, it’s essential to inquire about the following:

  1. Specialization and Experience: Ask if the lawyer specializes in probate law and whether they have previously handled cases similar to yours.
  2. Services Offered: Inquire about the benefits the lawyer can provide to assist with your probate matter.
  3. Personal Involvement: Find out if the lawyer will handle your case or if it might be delegated to someone else in the firm.
  4. Fee Structure: Discuss how the lawyer intends to charge for their services and whether it will be based on an hourly rate, a flat fee, or a percentage of the estate’s value.
  5. Case Process: Seek clarity on the step-by-step process of handling your particular probate case, including estimated timelines and potential complexities.

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