As the old saying goes, you can’t take it with you when you die. But a probate lawyer can help surviving family members settle your debts and distribute your assets after you’re gone, with or without a will.
What Is a Probate Lawyer?
Probate lawyers help executors of the estate (or “administrators,” if there is no will) manage the probate process. They are also called estate or trust lawyers. They also may help with estate planning, such as the drafting of wills or living trusts, give advice on powers of attorney, or even serve as an executor or administrator.
What Does a Probate Lawyer Do?
What a probate lawyer does will likely depend on whether or not the decedent has drafted a will prior to their death.
When There Is a Will
If an individual dies with a will, a probate lawyer may be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, an attorney may review the will to ensure the will wasn’t signed or written under duress. Elderly people with dementia, for example, may be vulnerable to undue influence by individuals who want a cut of the estate. There are numerous reasons that wills may be challenged, although most wills go through probate without a problem.
When There Is No Will
If you die without having written and signed a will, you are said to have died “intestate.” When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, if you are married, your surviving spouse receives all of your intestate property under many states’ intestate laws. However, intestacy laws vary widely from state to state.
In these situations, a probate lawyer may be hired to assist the administrator of the estate, and the assets will be distributed according to state law. A probate lawyer may help with some of the tasks listed above but is bound by state intestacy laws, regardless of the decedent’s wishes or the family members’ needs. A relative who wants to be the estate’s administrator must first secure what is called “renunciations” from the decedent’s other relatives. A renunciation is a legal statement renouncing one’s right to administer the estate. A probate attorney can help secure and file these statements with the probate court, and then assist the administrator with the probate process.
Role of a Probate Lawyer?
Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor/administrator:
- Collecting and managing life insurance proceeds
- Getting the decedent’s property appraised
- Finding and securing all of the decedent’s assets
- Advising on how to pay the decedent’s bills and settle debt
- Preparing/filing documents as required by a probate court
- Managing the estate’s checkbook
- Determining whether any estate taxes are owed
When Do You Need a Probate Lawyer?
Although it’s a good idea to have a lawyer help you through the probate process, it’s not always necessary to hire one. Whether you need a lawyer or not will depend on how big the estate is, so before you hire an attorney, ask yourself the following:
- Does your state have a relatively easy probate process?
- Do the family members that are in the will get along with each other?
- Is the money in the estate sufficient to pay debts?
- What type of property is in the estate?
- Can the estate be distributed without probate?
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.
Steps to avoid Probate
- 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.
Probate Lawyers Charges?
Probate lawyers typically use one of three methods to charge their clients:
- Fees based on hourly services
- Flat fees
- Payments based on a percentage of the estate’s value
- The exact amount of fees will depend on the attorney’s experience and other factors like where the attorney practices.
Difference Between a Probate and Estate Planning Lawyer?
Although both probate and estate planning attorneys generally practice in the same area of law, they have some distinct differences. A probate attorney usually handles the process of estate administration after a person dies. An estate planning attorney, on the other hand, works with living clients on how their client’s estates should be administered. The attorney could do that by helping clients prepare trusts, wills, and other relevant documents.
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Do you have more questions about Probate? Our attorneys are ready to give you all the help and answers you need. Call us today.
FAQs
Will probate be conducted even when a will exists?
Yes. Whether or not a person has a last will and testament in place at the time of death, any assets that do not pass directly to beneficiaries must go through the probate process. In fact, a will necessitates probate since the court has to verify the will’s validity.
What happens during probate?
During probate, the court will determine whether the will is valid. They will also appoint an executor, locate and value assets, and pay the decedent’s debts out of the estate. The residue will then be distributed to the decedent’s beneficiaries and heirs.
What does a probate lawyer do for you ?
A probate lawyer guides the executor of will or beneficiaries of an estate through the probate process.
