Even the richest people can’t take their money with them after death. However a probate attorney can assist surviving family members settling your debts and allocating your assets after you pass away, having or not having a will. So, what is a probate attorney?
What Is a Probate Attorney?
In general, a probate attorney, also known as trust or estate attorneys, assist executors of your estate (or administrators, if there isn’t a will) oversee the probate process. They also can also assist with estate planning, like the drafting of a will or living trust, give counsel on powers of attorney, or can even serve as your executor or administrator.
What Does a Probate Attorney Do?
What a probate Attorney performs will likely be subject on whether the deceased has drafted a will prior to their passing.
When There Is a Will
If an individual passes away with a will, a probate attorney could be hired to counsel parties, like the executor of the estate or any beneficiaries, on different legal matters. As an example, a probate attorney can examine the will to guarantee the will was not signed or written under coercion (or against the individual’s best interests). Elderly individuals with dementia, for instance, could be susceptible to unwarranted influence by people that want a piece of the estate.
There is a plethora of reasons that wills might be contested, although a lot of wills go through probate devoid of issues.
When There Is No Will
If you pass away without having created and signed a will, you are thought to have passed away “intestate.” When this occurs, your estate is allocated in accordance to the intestacy laws of the state in which the property is located, no matter your wishes. For example, if you are married, your surviving spouse gets all of your intestate property in accordance to states’ intestate laws. Nevertheless, intestacy laws vary greatly from state to state.
In these circumstances, a probate attorney could be hired to help the estate’s administrator (likewise to the executor), and the assets are going to be allocated in accordance with state law. A probate attorney may assist with some of the tasks previously listed, but is constrained by state intestacy laws, no matter the deceased wishes, or the family members’ wants.
A relative that desires to be the estate’s administrator needs to first procure what is known as “renunciations” from the deceased’s other relatives. A renunciation is a legal declaration waiving an individuals right to administer the estate. A probate attorney can help procure and file these declarations within the probate court, and then help the administrator throughout the probate process (such as establishing estate taxes, securing assets, etc.).
What Is a Probate Attorney’s Role?
In addition, a probate attorney can be responsible for carrying out any of the following tasks when advising executors/ administrators:
- Gathering and administering life insurance proceeds
- Getting the deceased’s property valued
- Locating and securing all the deceased’s assets
- Counselling on how to pay the deceased’s bills and settle debts
- Preparing and filing any documentation as required by the probate court
- Handling the checkbook of the estate
- Establishing if any estate taxes are unpaid
When Do You Need a Probate Attorney?
Even though it’s wise to have an attorney help you throughout the probate process, it’s not necessarily required to hire one. If you need an attorney or not will be subject to how big the estate is.
So, prior to you hiring an attorney, ask yourself as follows:
- Does state you live in have a relatively simple probate process?
- Do the family members that are in the will get along with each other?
- Is the capital in the estate adequate to pay debts?
- What kinds of property are in the estate?
- Can the estate be allocated devoid of probate?
How Much Do Probate Attorneys Usually Bill?
Probate Attorneys usually use one of 3 methods to bill their clients:
- Fees on the basis of hourly services
- Payments on the basis of a percentage on the value of the estate
The precise amount of fees will be subject to the experience of the attorney and other considerations such as the location the attorney practices in.
What is the Distinction Between a Probate Attorney and Estate Planning Attorney?
Even though both probate and estate planning attorneys typically practice in the same areas of law, they do have distinctive differences.
A probate attorney usually manages the process of estate administration following a person passing away. An estate planning attorney, at the same time, works with living clients on how their client’s estates need to be handled. The attorney can accomplish that by assist clients in preparing trusts, wills, and other associated documents.
What Questions Do You Need To Ask a Probate Attorney?
If you choose to retain an attorney for your probate case, you should think about inquiring about the following questions.
- Do they specialize in probate law? (Inquire if they’ve previously dealt with a case like yours.)
- How is the attorney planning to bill you?
- How is the attorney planning to deal with your case?
- What is the process involved in your particular case?
- Is the attorney going personally deal with your case?
Talk With a Probate Attorney and Get Assistance With the Probate Process
If you’re managing the allocation of an estate of an individual that passed away without a will or if you were designated as an executor in an estate, it is most likely wise to speak to an experienced probate attorney to receive assistance during the process.
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