Probate refers to the legal process in which a person’s estate is distributed upon death. The distribution is done according to specific instructions that they left in their will. While it varies from state to state, the probate process generally involves a series of filings and hearings by a probate judge.
An estate’s executor is a person named in the testator’s will. This is the person who is responsible for initiating the probate process as well as paying debts and taxes, and distributing the estate’s assets to the named beneficiaries. If the named executor fails to initiate the probate process, any party interested in the estate may initiate the process instead. Interested parties may include any person who could gain from the will, such as a creditor or a beneficiary.
If the will fails to name an executor, or if the named executor is unavailable to fill their role, the court will appoint an administrator or 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 legally valid, the decedent is said to have died “intestate.” Individual state law will determine who inherits from the decedent’s estate. Generally, the estate will go to a spouse first and then to other family members.
The following are the responsibilities of the executor:
- If there is a question about it, 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 promptly and in full
- Ensuring that all of the estate’s assets are distributed according to the decedent’s will. Without a will, distribution will be made per the state’s intestacy laws.
Once the executor has made an inventory of the assets of the estate, the property is then distributed, generally in the following order:
- Money paid for administering the estate, such as any appraisal fees and legal advertising
- Family allowances (see below)
- Funeral expense
- Debts
- Taxes
- Distribution of the rest of the estate to the beneficiaries and heirs
What Is a Probate Attorney?
A probate attorney may also be called an estate or trust attorney. While law school teaches all attorneys about basic estate law, these attorneys have experience in addressing all aspects of estate planning from beginning to end.
Probate attorneys will assist the estate executor in managing the probate process. If there is no will or no named executor, a probate attorney will direct the distribution of the assets. In some cases, a probate attorney may fill the role of executor or administrator themselves.
A probate attorney’s responsibilities are numerous. Some examples of what a probate attorney can do for you include:
- Reviewing the will to ensure that it is valid. That means that it was not written or signed under duress or against the best interests of the testator that the testator understood what the will said, and the testator’s mind was sound
- Requesting life insurance payouts and managing them
- Making arrangements to have the estate property appraised
- Locating 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
- Determining whether any estate taxes are owed
The uncontested probate process alone involves several aspects. Consulting with someone knowledgeable and experienced will make the process easier and more manageable for you and ensure everything is properly completed per local law.
As previously mentioned, if no will exists, the decedent’s estate is subject to intestacy laws. These laws vary state by state. A probate attorney would normally be hired to assist the estate administrator in distributing the estate’s assets according to the law of the particular state where the decedent died.
Probate can take a few years to complete. In the meantime, family members may need enough money to support themselves. In some jurisdictions, immediate family members can request that the court order the executor to disburse money from the estate as a family allowance. This money is considered short-term funds to support family members financially. Your probate attorney can request the court to release this money before the probate is completed.
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 case.
Three factors that largely influence cost include (1) what happens after the filing, (2) how complicated the legal work becomes, and (3) the location in which the probate is being processed since legal rates vary by jurisdiction.
Generally speaking, there are three methods that attorneys use to charge for probate work:
- Percentage of the Estate’s Value: 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 this fee structure. It tends to be the most expensive way of paying attorney’s fees.
- 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 pay for greater efficiency, so the expense may even out.
- Flat Fee: This is the most common fee arrangement and the most “relaxed” experience. With this structure, you need not worry that you are increasing the attorney’s fees every time you make a phone call to the attorney. 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.
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.
Even when the decedent has left a valid will, the probate process is complicated and often lengthy. A probate attorney can be an invaluable asset, especially if someone contests the will. When a valid will is established, a probate attorney will perform other essential but complicated tasks and advise parties on various legal matters.
A probate attorney will also be able to represent you in court, as needed, should any issues arise throughout the probate process, such as a challenge to the will’s validity.
