Probate is the entire process of administering a dead person’s estate. This involves organizing their money, assets and possessions and distributing them as inheritance after paying any taxes and debts. If the deceased has left a Will, it will name someone that they’ve chosen to administer their estate. This person is known as the executor of the Will. Every estate and every Will is different. The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has.
The basic process for an executor is:
1. Gather the full details of the estate’s assets and debts
2. Apply for Grant of Probate (permission to administer the estate and pass out inheritance)
3. Complete an inheritance tax return and pay any tax due
4. You receive a Grant of Probate
5. Repay any of the deceased’s outstanding debts
6. Distribute the rest of the estate according to the instructions left in the Will.
This will take about a year for most estates. The exact amount of time will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years. Sometimes disputes can come up during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can delay you in administering the estate.
Generally speaking, probate Attorney, also called estate or trust attorneys, help executors of the estate (or “administrators,” if there is no will) manage the probate process. 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 Attorney 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 die 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 (or against the best interests of the individual). 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 attorney may be hired to assist the administrator of the estate (similar to the executor), and the assets will be distributed according to state law. A probate attorney 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 (managing the estate checkbook, determining estate taxes, securing assets, etc.). Most people, thankfully, don’t need to hire a attorney very many times in their lives. And even if you’ve gone to an attorney for a business matter, real estate transaction, or a divorce, working with a probate attorney is likely to be a different kind of experience. Some things are the same whenever you hire an attorney, though: to fully understand what’s going on, you will probably need to ask a lot of questions, and to keep costs down, you will have to take on some of the routine work yourself.
Who Does What
When you’re winding up an estate, there’s usually a lot of legwork to be done, things like making phone calls and gathering documents. Many of these tasks don’t need to be done by someone with a law degree. So if you’re paying the lawyer by the hour, you’ll probably want to volunteer to take on some of this work yourself. Just make sure it’s clear who is responsible for what tasks, so things don’t fall between the cracks. For example, make sure you know who is going to:
• order death certificates
• file the will with the local probate court
• get appraisals of valuable property, and file the deceased person’s final income tax return.
Keep in mind that many attorneys are more flexible than they used to be about offering what’s often called “limited representation” or “unbundled services.” In other words, many attorneys no longer insist on taking responsibility for all the work of a probate case. They will agree to provide limited services, for example, answering your questions during the probate process while you take on other tasks traditionally done by the lawyer, such as drawing up the probate court papers. Especially if your court provides fill-in-the-blanks probate forms, this kind of arrangement may be good for you. Be sure to get your agreement in writing, so both you and the lawyer are clear on your responsibilities.
It’s a good idea to ask the lawyer for a list of deadlines, for example, when is the cutoff for creditors to submit formal claims, and when will the final probate hearing be held? This will be helpful both if there are things you need to do, and if creditors or beneficiaries contact you with questions.
Dealing with Beneficiaries and Creditors
If everyone gets along, it probably makes sense for you, not the attorney, to field questions from beneficiaries. It will save money, and you’ll know what beneficiaries are concerned about. If you send regular letters or emails to beneficiaries to keep them up to date (this usually helps keep them from fretting), you might ask the attorney to review your communications before you send them, to make sure you’ve got everything right.
Getting Legal Advice as You Go
Check in with the attorney regular to see if anything is happening with the probate case. Usually, no news is good news. State law requires you to keep the probate case open for months, to give people time to come forward with disputes or claims, but in most probates, beneficiaries don’t argue about anything in court, and few creditors submit formal claims. By all means, ask the attorney any questions you have about the proceeding. But if the attorney is charging by the hour, try to be efficient when you communicate. If you can, save up a few questions and ask them during one phone call or visit to the attorney. But if you are unsure about taking a particular action that will affect the estate—for example, you want to give one needy beneficiary his inheritance months before the probate case will close, get legal advice before you act.
Role of a Probate Attorney
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
Although it’s a good idea to have an attorney help you through the probate process, it’s not always necessary to hire one. Whether you need an attorney 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?
How Much Do Probate Lawyers Typically Charge?
Probate attorneys 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.
What Questions Should You Ask a Probate Attorney?
If you decide to retain an attorney for a probate case, you should consider asking the following questions.
• Do they specialize in probate law? (Ask if they have handled a case like yours before.)
• How does the lawyer intend to charge you?
• How does the lawyer intend to handle your case?
• What is the process involved in your specific case?
• Will the lawyer personally handle your case?
The Probate Process
When it comes to administering a decedent’s estate, the process commonly referred to as “probate”—many people fear it is daunting and complicated, but it can actually be as simple as four steps. If there is no will, someone must ask the court to appoint him or her as administrator of the decedent’s estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.
The Basic Steps to Probate
If you find yourself trying to navigate the probate process, follow these simple steps:
• File A Petition And Give Notice To Heirs And Beneficiaries: The probate process begins with the filing of the petition with the probate court to either admit the will to probate and appoint the executor or if there is no will, appoint an administrator of the estate. Generally, notice of the court hearing regarding the petition must be provided to all of the decedent’s heirs and beneficiaries. If an heir or beneficiary objects to the petition, they have the opportunity to do so in court. Also, generally, notice of the hearing is published in a local newspaper. This is to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding.
• Following Appointment By The Court, The Personal Representative Must Give Notice To All Known Creditors Of The Estate And Take An Inventory Of The Estate Property: The personal representative then gives written notice to all creditors of the estate based upon state law; any creditor who wishes to make a claim on assets of the estate must do so within a limited period of time (which also varies by state). An inventory of all of decedent’s probate property, including real property, stocks, bonds, business interests, among other assets, is taken. In some states, a court appointed appraiser values the assets. When necessary, an independent appraiser is hired by the estate to appraise non-cash assets.
• All Estate and Funeral Expenses, Debts and Taxes Must Be Paid from the Estate: The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent’s obligations.
• Legal Title In Property Is Transferred According To The Will Or Under The Laws Of Intestacy (If The Decedent Did Not Have A Will). Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, generally, the personal representative petitions the court for the authority to transfer the remaining assets to beneficiaries as directed in the decedent’s last will and testament or, if there is no will, according to state intestate succession laws. If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, money is then transferred to the trustee. Unless the beneficiaries of the estate waive the requirement as allowed under some state laws, the petition may include an accounting of how the assets were managed during the probate process. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients. A properly drafted will, updated regularly to account for life changes, organized records of debts, personal property and other assets simplifies the probate process. The easier it is for your personal representative to trace your steps after you’re gone, the easier the process.
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.