Probate refers to the legal process in which a person’s estate is distributed upon their death, according to specific instructions for doing so that they left in their will. While varying from state to state, the probate process generally involves a series of filings and hearings which are presided over by a probate judge.
The following provides an example of how the probate process is generally run:
- Determining and proving the validity of the testator’s will;
- Submitting an inventory and appraisal of all estate property;
- Ensuring that all taxes and debts are paid in a timely manner, and in full; and
- Ensuring that all of the estate’s assets are distributed according to the decedent’s will, or in accordance with the state’s intestacy laws.
An estate’s executor is a person named specifically in the testator’s will, who is responsible for initiating the probate process as well as distributing the estate’s assets to the named beneficiaries. If the named executor fails to initiate the probate process, any party that has an interest in the estate may initiate the process instead. Interested parties may include any person who could potentially gain from the will, such as a creditor or beneficiary.
If the will failed to name an executor, or if the named executor is unavailable to fill their role, the court will then appoint an executor to oversee the probate process. If a will exists and is considered to be valid, the estate will be distributed according to the wishes of the testator. If there is no existing will, or if a will exists but is not considered to be legally valid, individual state law will determine who inherits from the decedent’s estate.
Upon the death of the testator, the named executor will file paperwork in order to prove that the will is valid. The executor is then sworn in as the decedent’s personal representative, and a list of the decedent’s debts and property is presented to the court.
The property is then distributed, generally as follows:
- Money paid for administering the estate, such as any appraisal fees and legal advertising;
- Family allowances;
- Funeral expenses;
- Taxes; and
- Any remaining claims, such as any money in the estate being given to the beneficiaries and heirs.
What Is a Probate Attorney? Should I Hire a Probate Attorney To Distribute My Estate?
A probate attorney may also be referred to as an estate or trust attorney. While law school teaches all attorneys about basic estate law, these attorneys specialize in addressing all aspects of estate planning from beginning to end. This includes probating wills, and advising on power of attorney, which makes probate attorneys the most qualified type of attorney for the job.
Probate attorneys will assist the executor of the estate in all aspects of managing the probate process. They will help the administrator do the same, if there is no will or no named executor. In some cases, a probate attorney may fill the role of executor or administrator themselves.
Even when the decedent has left a valid will, going through the probate process is complicated and often lengthy. A probate attorney can be an invaluable asset in the process, especially if someone contests the will. When a valid will is established, a probate attorney will perform other essential but complicated tasks in addition to advising parties on various legal matters.
Some examples of what a probate attorney can do for you include, but may not be limited to:
- Reviewing the will in order to ensure that it was not written or signed under duress, or against the best interests of the testator;
- Collecting and managing life insurance payouts;
- Arranging for the estate property to be properly appraised;
- Locating and securing all of the decedent’s assets;
- Providing advice regarding the payment of the decedent’s bills and debts;
- Preparing and filing documents as required by the probate court;
- Managing the estate’s finances and accounting; and
- Determining whether any estate taxes are owed.
The uncontested probate process alone involves several aspects. Consulting with someone who is knowledgeable and experienced in these aspects will make the process easier and more manageable for you, and ensure that everything is properly completed in accordance with local law. Additionally, an executor does not pay the probate attorney’s fees; these fees are paid by the estate, so that there is no financial burden to consider when deciding to hire a probate attorney.
If no will exists, the decedent’s estate is subject to intestacy laws as previously mentioned. These laws vary state by state. A probate attorney would be hired to assist the estate administrator in distributing the estate’s assets according to the state’s law. They may also assist with some of the aforementioned tasks, but will do so according to the state’s law as opposed to the wishes of the decedent or their family’s needs.
In some jurisdictions, immediate family members can request the court to disburse money from the estate. This money is considered to be short-term funds in order to financially support family members. Your probate attorney can request the court to release this money before the probate is complete, if necessary.
How Much Does a Probate Attorney Cost?
As previously mentioned, the estate itself will cover attorney’s fees. What this means is that it is not the responsibility of the executor. The price of probate differs, as does the price of a probate attorney, depending on how probate proceeds in each specific case.
Two factors that largely influence cost include what happens after the filing, and how complicated the legal work becomes. Another influencing factor would be the location in which you are filing, as different jurisdictions maintain different costs.
Generally speaking, there are three methods that attorneys use to charge for probate work:
- Percentage of the Estate’s Value: This is not considered to be an ideal way to pay a probate lawyer from the point of view of the estate. Charging a percentage of the estate’s value is only customary in a few states.
- Arkansas, California, Florida, Iowa, Missouri, Montana, and Wyoming are the few states allowing for this fee structure.
- It is not a legal requirement to collect a percentage fee, even in the aforementioned states. Many attorneys prefer this statutory fee because it tends to be considerably high in relation to the amount of work that they complete.
- These fees are high due to the fact that they are calculated based on the gross value of the assets, rather than the net value. It would generally be 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, and is considered to be the most “relaxed” experience. The reason for this would be because you are not worrying about adding costs every time you need to communicate with the attorney. Additionally, a flat fee eliminates the need to keep to-the-minute records of time spent working on the case. However, it is important to understand what the flat fee does and does not cover before agreeing to it, as each attorney differs in what their flat fee covers.
- Hourly Rate: Hourly rates are influenced by 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 most likely charge a higher hourly rate, you will likely be paying for greater efficiency. Attorneys generally bill in minimum increments of six minutes, or one-tenth of an hour.
Should I Hire a Probate Attorney?
Although hiring a probate attorney is not strictly necessary, working with an experienced and local probate attorney can relieve much of the burden of estate distribution. Additionally, a local lawyer will be best aware of your state’s specific laws, and can ensure that you move forward while adhering to those laws.
A probate attorney will also be able to represent you in court, as needed, should any issues arise throughout the probate process.