Probate Lawyer : When You Would Need One?

• Introduction
• Probate in United States
• What Is a Probate Lawyer?
• What Does a Probate Lawyer Do?
• The Role of a Probate Lawyer?
• When Do You Need a Probate Lawyer?
• How Much Do Probate Lawyers Charge?
• Probate Process
• Bottom Line

Introduction

Probate is the legal process of legalizing a will. It is the judicial process to prove a will in a court as a valid document. It is also the settlement of an estate in the absence of a legal will according to the intestacy laws in the state of residence of the deceased at time of death. However, there could be contesting of a will through the probate process. A probate lawyer, sometimes called trust or estate lawyer, aids executors or administrators of a decedent’s estate manage the probate process.

The first step in the legal process of administering an estate of a deceased person is the granting of probate. Next is resolving all litigation, claims and distributing the property under the will of the deceased person. A probate officially appoints the personal representative (known as the executor) of the testator’s will. The testator is the deceased person. The executor has legal power to distribute the testator’s properties in the manner detailed in the testator’s will.

Granting probate is the validation of a testator’s will in a probate court and the grant of its approval to the executor. After the validation, the probated will becomes a legal instrument enforceable by the executor in the law courts.

Probate in United States

It is generally necessary to “probate an estate” if the these conditions are not in place. First the estate property is not automatically devise to a surviving spouse or heir via principles of survivorship or joint ownership. Secondly estates that are not in a living trust. Furthermore life insurance and retirement accounts with duly completed beneficiary designations will avoid probate. And also most bank accounts titled jointly or made payable on death.

Probate Court

Some states have procedures that allow for the transfer of properties through affidavit or a simplified probate process. For example, California has a procedure called Small Estate Summary Procedure. This procedure allows the summary transfer of testator’s asset without a formal Probate proceeding by a probate lawyer. This only applies for Small Estate of $150,000 limit.

A probate court supervises the probate process of estates that do not qualify for the simplified procedure in accord with the law of that particular jurisdiction. The court ensures administration and disposition of the property is in a manner consistent with the decedent will. In some cases distribution may require selling of the assets, real estate inclusive. Probate court appoints the executor if the will does not name one. And probate court can also appoint an administrator for an intestate estate.

Which Assets can be Probate

A decedent’s property will not go into probate because a surviving spouse or heir has right over them via principles of survivorship or joint ownership. And secondly if it is in a trust during the decedent’s lifetime. Life insurance and retirement accounts with duly completed beneficiary designations will also avoid probate. Likewise most bank accounts titled jointly or made payable on death.

In these cases, no involvement of court action and the property is privately disposed, with estate taxes. To determine whether each asset passes outside of probate is the best way to know which assets are probate assets. You need more assistance from probate lawyers on this.

Steps of Probate

Intestacy is the condition, when the decedent dues without a Will. In this scenario, the distribution of the estate is in accord to the laws of the jurisdiction where the decedent resided. With the exception of assets located in another jurisdiction

The executor of a decedent’s Will carries out the instructions outlined in the Will. When only a copy of the will is in place, many states probate that copy of the will. But on the establishment that the testator did not destroy the Will before death.

Where the executor cannot administer the probate, or wishes to have someone else do it, another person is name the administrator. An executor or an administrator sometimes receive compensation for his service. Additionally, removal of executor by beneficiaries of an estate can happen, if he is deem incapable of fulfilling his responsibilities.

Executor/Administrator Responsibility

After opening the probate case with the court, the executor index and collects the decedent’s asset. Next, he pays off any debts and taxes, including estate tax in the United States. If the estate is taxable at the federal or state level he will pay the taxes. Finally, he disposes the remaining asset to the beneficiaries as instructed in the will, or under the intestacy laws of the state.

The probate court sometimes will require the executor to provide a fidelity bond. This fidelity bond is an insurance policy in favor of the estate to protect against possible abuse by the executor.
The executor or administrator of a probate must understand and abide by the fiduciary duties, such as treating all beneficiaries equally. Failure to do so may allow interested persons to petition for his removal and hold him liable for any harm to the estate.

Dealing with Probate Disagreement

An individual or group may challenge any aspect of the probate administration through a probate lawyer. These objections might come as follows:
First, a challenge as to the identity of the heirs. Secondly, Will contest – a challenge to the validity of the Will. Thirdly, status challenge of the person serving as executor or administrator. Next, a challenge to whether the executor is properly administering the estate. With the introduction of inexpensive DNA profiling techniques, paternity issues can be challenged among the potential heirs in intestate estates. Biological children inheritance rights could be denied in some situation, while non-biological heirs can be granted inheritance rights.

What Is a Probate Lawyer?

A probate lawyer is a legal practitioner that specializes in probate law and process. Probate lawyers sometimes called trust or estate lawyers help executors or administrator (if there is no will) of the decedent’s estate manage the probate process. They give legal advice on powers of attorney and can also serve as an executor or administrator.

Probate lawyers also can assist with estate planning, such as the drafting of succession plan, wills, life insurance or living trusts. Estate planning also covers property disposition and charity. Visit other sections of teejaytrue for additional resources on estate planning, wealth transfer and generation etc.

What Does a Probate Lawyer Do?

A probate lawyer work will must likely depend on whether or not the decedent has drafted a will before passing on. He will be involved in the probate process from start to finish.

When There Is No Decedent’s Will

Intestacy is the condition where the decedent dies without a will. The property or estate is known as an intestate estate or property.
When intestacy happens, the disposition of the estate is according to the intestacy laws of the state where the property resides, regardless of the decedent’s wishes. However in the United States, laws of intestacy vary widely from state to state. Under many States’ intestacy laws the decedent’s (intestate) surviving spouse inherits all the property.

A probate lawyer may be hired to assist the administrator of the estate in these intestate situation. He or she ensures the distribution of assets are according to the state intestacy laws. Regardless of the family members needs or decedent’s wishes, a probate lawyer must perform the tasks according to the state intestacy laws.

The legal statement renouncing one’s right to administer an estate is known as renunciation. A decedent’s relative that desires to be the estate administrator must first secure this legal statement from other relatives of the decedent. A probate lawyer will help secure and file these legal statements with the probate court. Furthermore he will assist the administrator with the probate process such as securing assets, debt payment, managing the estate checkbook, and determining estate taxes.

When There Is a Decedent’s Will

When the decedent dies with a will, the services of a probate lawyer is very direct. He or she advises the executor of the estate, surviving spouse or beneficiaries on various legal matters. The attorney reviews the will. He ensures the will wasn’t signed or written under any undue influence by individuals against the best interests of the decedent (testator). Most times decedent Wills go through probate without a problem but it can be challenge for numerous reasons.

The Role of a Probate Lawyer?

Lets take a look at the specific tasks a probate lawyer performs. A probate attorney may shoulder the responsibility for performing any of the following tasks:

Preparation and filing of legal documents as required by a probate court

Finding and securing all of the decedent’s assets

Collecting and managing life insurance proceeds

Managing the estate’s checkbook and estate taxes

Getting appraisal for the decedent’s property

Advice on how to settle debts and pay the decedent’s bills

When Do You Need a Probate Lawyer?

Some of the decedent’s assets may not enter probate because it passes to another person contractually. For instance the death proceeds of an insurance policy insuring the decedent’s assets that names a beneficiary as “payable on death”. And a bank or brokerage account legally held as “jointly owned with right of survivorship”.

Revocable or irrevocable trust property created during the grantor’s lifetime also avoids probate. The best way to determine which assets are requiring administration is to determine whether each asset passes outside of probate.

Another instance are jurisdictions in the United States. that recognizes a married couple’s property as tenancy by the entireties. In this case if a spouse dies intestate, the portion of his/her estate so titled passes to a surviving spouse without a probate.

It’s a good advice to have a lawyer help you through the probate process, but not always necessary to hire one. Therefore, before you hire a probate lawyer, ask yourself the following:

Can disposition of the estate happen without probate?

Could your state have a relatively easy probate process?

Can the family members that are in the will get along with each other?

Will the money in the estate be sufficient to pay debts?

What type of assets are in the estate property?

How Much Do Probate Lawyers Charge?

Probate lawyers most times use one of these methods to charge their clients:

Fees based on hourly services

Flat fees

A percentage of the estate’s value as payment

The exact charge will depend on the attorney’s experience and factors like the jurisdiction where the attorney practices.

Is there Difference Between a Estate Planning Lawyer and a Probate Lawyer?

Both probate and estate planning attorneys roles and practice overlap, but still there some distinct differences.

A probate lawyer usually handles the process of estate administration of a decedent. On the other hand, an estate planning lawyer works with living clients on the administration of their client’s estates. The lawyer does these by helping clients prepare trusts, wills, and other relevant documents.

Questions You Should Ask a Probate Lawyer?

If you decide to hire a lawyer for a probate case, consider asking the following questions.

Do they specialize in probate law?

If the lawyer have handled a case like yours before?

How does the lawyer plan to bill you?

How does the lawyer plan to handle your own case?

What are the processes in your own case?

Will the lawyer personally handle your case?

Speak to a probate lawyer to get help with the Probate Process.
If you are handling the distribution of an estate as the administrator or named as an executor consult a probate lawyer. It is of a greater good to speak to an experienced probate attorney for help throughout the process.

Probate Process

Probate is a process of improvement in a probate court that proves a will of a decedent is valid. However if it turns out invalid, beneficiaries will not receive the inheritance. Probate administration like any legal proceeding have technical aspects.

Early Level of Probate Administration

File a legal request for the appointment of an administrator to secure letters of administration (often referred to as “letters testamentary”). A Letter of Administration is a proof that the Administrator has the right to handle the assets.

Executors of the will need guidance on how and when to distribute assets. And how to take creditors’ rights into account. You must send notifications to creditors and legal notices published.

Administration of a homestead property must happen separately from other assets. In states like Florida, homestead follows its own set of unique rules. In many common law jurisdictions in parts of US, any jointly-owned property passes automatically to the surviving joint owner of the property. Except if their equitable title is as tenants.

The jurisdiction laws governing the probate process often depend on the value and complexity of the estate. You can avoid probate process for an estate of relatively small value. The executor or administrator of the estate must apply for the probate at a certain threshold in some jurisdictions or a probate lawyer filing on their behalf.

Next Level of Probate Administration

Before distribution of the estate, the executors deduct the costs of the administration from the assets. These costs of administration include ordinary taxation such as income tax on interest and property taxation.

Next, filing and objecting to claims against the estate are within a time constraint.

There could be pending lawsuit over the cause of the decedent’s death or other pending suits. Contentious probate cases may require separate procedures.

To effect the correct distribution of assets pursuant to the will, or debts payment, real estate or other property may need to be sold.

Finally consideration is giving to estate taxes, gift taxes or inheritance taxes if the estate exceeds certain thresholds.

Final Level of Probate Administration

Some assets such as life insurance are transferrable from the deceased to his or her beneficiaries. While other assets may have “pay on death” or “transfer on death” designations, avoids probate.

Provision of proper and adequate notice respects the rights of all beneficiaries. And the distribution of estate assets must be timely, proper and efficient.

Probate lawyers offer legal services in probate court for smooth probate administration. Furthermore probate lawyers sometimes also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.

In the United States executors of a will in common law jurisdictions obtain probate while they give letters of administration where there are no executors.

Bottom Line

The old saying that goes thus: “you can’t take it with you when you die” is still very valid today. Death is a debt all living must paid some day. Because it is inevitable, start now and plan your estate. It will can make the transfer of your wealth to the next generation easier and smooth. Make hay while the sun shines!