Probate is the legal process in which a will is determined valid in court. It is also a way in which a person’s assets and property is divided after their death, and any debts owed to creditors is paid off.
The probate process varies from state to state and is court supervised when there is a will. If the will exists and is valid, the estate is distributed according to the wishes of the decedent. If there is no existing will, state law will determine who receives the decedent’s estate.
After a person dies, the named executor files paperwork to prove that the will is valid. Then, the executor is sworn in as the decedent’s personal representative. Additionally, a list of the decedent’s debts and property is given to the court. The property is then distributed, generally in this order:
- Money paid for administering the estate (for example, any appraisal fees and legal advertising);
- Family allowances;
- Funeral expenses;
- Taxes; and
- Any remaining claims (any money in the estate going to the beneficiaries and heirs).
What is a Probate Attorney?
A probate attorney is also called an “estate” or “trust” attorney. These attorneys specialize in handling all aspects of estate planning from start to finish, probating wills, and advise on power of attorney, making them the most qualified for the job.
They will assist the executor of the estate (or the administrator if there is no will naming an executor) in managing the probate process. Sometimes, they even serve as the executor or administrator themselves.
Should I Hire a Probate Attorney to Help Me Distribute the Estate?
Going through the probate process is complicated, even when the decedent left a valid will. A probate attorney is going to be an invaluable asset especially if someone contests the will, or if you are the executor. In the case that a valid will is established, a probate attorney will perform some other essential but complicated tasks in addition to advising parties on various legal matters:
- Review the will to ensure it wasn’t written or signed under duress, or against the best interests of the individual;
- Collect and manage life insurance proceeds;
- Have the decedent’s property appraised;
- Find and secure all of the decedent’s assets;
- Advise on the payment of the decedent’s bills and debts;
- Prepare and file documents required by the probate court;
- Manage the estate’s checkbook; and
- Determine whether any estate taxes are owed.
As you can see, even uncontested probate has several aspects to the process. Hiring someone who is knowledgeable and experienced in these aspects will make the process easier on you, and ensure everything is properly completed. An executor does not pay the probate attorney’s fees. These are paid by the estate, so there is no financial burden to consider when deciding to hire a probate attorney.
In cases where there is no will, the decedent’s estate is subject to intestacy laws, which vary state by state. A probate attorney would be hired to assist the estate administrator and distribute the assets according to the state’s law. Additionally, they may assist with some of the aforementioned tasks, but will do so according the state’s law as opposed to the wishes of the decedent or their family’s needs.
Something else to consider is that in some jurisdictions, immediate family members can request the court give the money from the estate. This money is considered short-term funds to financially support family members. Your probate attorney can ask the court to release this money before the probate is complete.
Probate Attorney Costs and Potential Fee Arrangements
As previously mentioned, the estate covers attorney’s fees. It is not the responsibility of the executor. The price of probate differs, depending on how probate proceeds. What happens after the filing and how complicated the legal work becomes, both influence the cost. Another influencing factor is where you happen to be filing.
There are generally three methods attorneys use to charge for probate work:
- Percentage of the Estate’s Value: This is not an ideal way to pay a probate lawyer from the point of view of the estate, and is only customary in a few states (Arkansas, California, Florida, Iowa, Missouri, Montana, and Wyoming).
- Even in these states, it is NOT required by law to collect a percentage fee. Many attorneys prefer this statutory fee because it tends to be very high in relation to the amount of work they will be doing.
- These fees are so high because they are calculated based on the gross value of the assets, rather than the net value. So, it is in the estate’s best interest to try to negotiate an hourly rate, or a flat fee.
- Flat Fee: This is the most common fee arrangement. It is also considered to be the most “relaxed” experience, as you aren’t worrying about adding costs every time you want to ask the attorney a question.
- A flat fee eliminates the need to keep down-to-the-minute records of time spent on the case. It’s important to understand what the flat fee does and does not cover before agreeing to it.
- Hourly Rate: A few things influence the hourly rate: the attorney’s experience and training, where you live, and the size of the practicing attorney’s law firm.
- Although a more experienced probate attorney will likely charge a higher hourly rate, you get the benefit of efficiency. Attorneys will most commonly bill in minimum increments of six minutes, or one-tenth of an hour.
Should I Contact an Attorney If I am Facing Issues with Probate?
If you have legal questions about the probate process, general estate planning, or feel overwhelmed by all the ins and outs of probate, you should consult with a probate lawyer. They will help ensure a smooth probate process and explain anything you may not fully understand. Your attorney near you will also ensure that your legal rights are upheld.