It is very hard to deal with the loss of a loved one. There are many memories and emotions to process right after they are laid to rest. In the midst of all that, the last thing anybody wants is to have to encounter the stress of the probate process. In some cases, a probate lawyer can simplify the process. Likewise, some people are very meticulous about their lives and the events that take place when they eventually stop living. What is a probate lawyer?
Every human being will die someday; that is a debt we all have to pay. Some people do not care about what happens when they are gone, but others prefer to plan their estate property so their final wishes are carried out properly. In some cases, these individuals choose to hire a probate lawyer who will serve a critical role in the estate administration process.
We all know that the distribution of assets is not an easy thing. Since it entails a transfer of property, all legal procedures must be followed. We know you are eager to find out what is a probate lawyer and what they do, how they do it, and who they sell their services to. In this article, we will answer these questions and leave you with a good overview of this topic.
“I can’t say enough about the level of service and professionalism I received working with A People’s Choice. Emails were always responded to quickly and thoughtfully. They really care about the process and helping you get the best result with no up-selling. Of course, they can’t provide legal advice, but I was referred to an attorney when I needed some questions answered who was very reasonable and easy to get a hold of as well. The process played out according to plan and I ended up saving a lot of money by going with A People’s Choice over an attorney.”
“I am writing to give A People’s Choice my utmost recommendation. I live in New England and found them on the web. After speaking with a staff member on the phone I had the confidence to give them my business. A People’s Choice handled my probate case with great professionalism and knowledge. My case turned out to be more complicated than originally believed and the staff walked me through each step. They always responded promptly to my email questions. In the end, their service was exactly what I hoped for; they saved me thousands of dollars and allowed me to do it from across the country. They were truly a pleasure to work with.”
“A People’s Choice helped us throughout our entire year-long probate making the process very easy and manageable while at the same time saving us thousands of dollars in lawyer’s fees. Not only were they extremely friendly and fast to respond to our questions but they made the process simple enough that we hardly ever had to contact the courthouse directly and we even had a hearing done without an appearance. Would highly recommend A People’s Choice to anyone!”
The Basic Terms About Probate You Need to Know
Before diving into the details, let’s evaluate some important terms to make this article captivating.
Probate: Probate is a legal process in which a will is analyzed to determine whether it is valid or invalid. Probate can also mean the management of a deceased person’s will or the estate of a deceased person who doesn’t have a will.
Testator: A testator simply refers to an individual who has made a will or someone who has given a legacy.
Will: A will is a binding legal document. It gives a testator the right to administer an estate and monitor the disposal of the beneficiaries. This document is regarded to be the proof of the testator’s wishes to be followed upon their death.
Estate: An estate in this context refers to the money and property of an individual at death.
Executor: An executor is any person charged with the duty of ensuring that the last wishes of a deceased person regarding the administration of their estate are granted. An estate executor has to be appointed in advance by the deceased person to aid in the administration of estates.
Fiduciary: This term refers to the relationship between a trustee and a beneficiary of an estate.
Intestate: This is the term used to describe an individual who, upon death, has no written will or trust.
Renunciation: A renunciation is an official proclamation of an individual, renouncing their right to administer the estate of their deceased relative.
Administrator: An administrator in this context is the individual who manages and oversees the estate of a deceased person when they die. The relative who wishes to be the estate administrator will have to first obtain renunciations from the deceased’s other survivors.
What Is a Probate Lawyer?
A probate lawyer is an attorney licensed by the state to guide the executor of a will or the potential beneficiaries listed in the will to get through the process of settling the estate. During a legal proceeding, a probate lawyer provides key services such as:
- Inventorying estate assets
- Paying estate debts
- Distribution and settlement of the estate property (probate estates)
Apart from that, a probate lawyer (probate attorney) is also licensed to help with the estate planning process. However, they may charge extra fees for such services i.e. creating estate planning documents. If engaged in the estate planning process, a probate lawyer can successfully handle issues to do with:
- Creating a will
- Setting up a guardianship, or
- Writing a trust
The fees charged by a probate lawyer do vary based on the probate matter. They may either charge a flat fee or an hourly rate. Also, the size of the estate has a role in determining the fee to charge. If you reside in California, the fees are:
- 4% for the first $100,000
- 3% of the next $100,000
- 2$ of the next $800,000
- 1% of the next $9m
- 0.5% of the next $15m, and
- Any reasonable amount for estates valued at $25m or more.
Remember that we defined “probate” as the process in which a will is analyzed to determine its validity as well as the management of a deceased person’s will or real estate. A probate lawyer is involved in the administration of a will to ensure a smooth transfer of estate property to the rightful beneficiaries. All beneficiary designations are included in the will. Since most probate matters require legal representation, a probate attorney will always work in conjunction with executors.
The Role of a Probate Lawyer
When people die, and after a certain period in time, their estate assets have to be shared. This happens per their stipulations as expressed in their will. It also happens in strict accordance with the laws of the state. To do this, some individuals enlist the services of a probate lawyer.
The probate lawyer can assist the executor of the deceased’s will as well as the beneficiaries of the will through the probate process. Through a guided probate proceeding (and probate legal terms), these individuals ensure that the executor administers the will without bias per state laws. They ensure that all estate beneficiaries receive their fair share. When handing over the assets to beneficiaries, the executor can always seek legal advice from the probate lawyer.
The probate process includes the following steps:
- Identification of the deceased’s assets based on their estate plan
- Appraisal of the deceased’s properties
- Collection and management of proceeds from insurance policies
- Payment of the deceased’s bills (this may also include estate tax returns)
- Settlement of the deceased’s outstanding debts (only legitimate debts)
- Preparation and filing of documents needed in the probate court
- Management and settlement of any estate or inheritance taxes
- Management of the estate checkbook
- Transfer of assets to appropriate beneficiaries
- Estate debt recovery
Note that a probate process can be avoided if the estate of the deceased person has been placed in a trust before death. This will ensure a hitch-free disbursement of assets without any legal proceedings. In some cases, probate application may not even be necessary for asset distribution to take place.
Wondering what trust is? Trust in this context can be defined as a relationship (fiduciary) in which a party (trustor) grants another party (trustee) the exclusive rights to hold title to an estate for the benefit of a third party (beneficiary). This, in layman’s terms, implies that the decedent charged a person or persons with the duty of sharing their assets to certain beneficiaries according to explicit stipulations.
We may now have further questions, like, “can a probate lawyer and or an executor be a trustee?” Sure! A probate lawyer, an executor, or both can be trustees. This can reduce both the stress and duration of the probate process.
When Do You Need a Probate Lawyer?
Whether or not you need a probate lawyer is largely dependent on the size of your estate. In some cases, it also relies on the size of the family that intends to share your real property at your time of death. There are a few factors to consider that can help you decide whether you have valid claims to hire a probate lawyer to handle your estate’s legal matters. The following factors will enable you to tick or untick some boxes as the case may be:
- Your state probate process
- How much is your estate worth?
- Types of properties in your estate including retirement accounts and any life insurance policy
- Is your estate distributable without probate?
- Are your beneficiaries united?
- Do you pay estate taxes?
These factors and your answers to them can help you determine whether or not you need to enlist the services of a probate lawyer. Another factor to consider is whether or not there is a will for the estate. Probate lawyers can be hired in either case. Let’s discuss that a bit further.
Probate Lawyer When There Is a Will
If an individual has written a will before their death, a probate lawyer can be hired as an advisor to the parties involved in the administration (the executor and the beneficiaries). The probate lawyer’s duty, in this case, is to analyze the will and determine whether or not it was signed or written under duress or under undue influence. This can sometimes be the case for some elderly people living with dementia, who may be influenced unduly by individuals who want to benefit from their will and life insurance proceeds.
What if there is cause for concern? In cases where the probate lawyer finds a loophole in the will of the deceased, a probate litigation attorney has a legal duty to challenge or contest the will, trust, or the whole fiduciary duty of the executor. This can greatly affect the outcome of an estate.
Probate Lawyer When There Is No Will
When an individual dies intestate (without writing or signing any will), the individual’s estate is distributed according to the intestacy laws of the state where the estate is established. Because there is no will, the deceased’s wishes or stipulations cannot come into play in cases like these.
Intestacy law for intestate estate varies from one state to the other. Under many states’ intestacy laws, if a deceased person was married at the time of their death, their surviving spouse receives all their intestate property. California is a community property state, so that is the case there.
In this type of situation, a probate lawyer can be hired to assist the administrator of the estate. The lawyer can help with distributing the assets of the deceased individual according to the law of the state. In this case, where a will is not present, the probate lawyer performs all their listed duties according to the state’s intestacy laws. The deceased’s wishes, stipulations, or their survivors’ needs cannot be factored in because there is no will.
The Cost to Hire a Probate Lawyer
The typical costs of probate lawyers vary. Probate lawyers use various methods to charge clients for their services. The methods employed by probate lawyers to charge clients for the services they render include the following:
- Flat fees
- Hourly charges
- Payment by a percentage of estate value
It is pertinent to note that the particular charge of probate lawyers varies depending on their experience, the services they render, their geographical location, and the types of assets owned by the deceased. California is an expensive state, so the services of a lawyer also tend to be on the pricey side.
In California, the price of probate lawyers is set by the state at 4% of an estate’s value. Depending on the estate, that can be a serious chunk of change.
How to Save Money When Hiring a Probate Lawyer
Hiring a probate lawyer or any attorney can be dicey and expensive depending on the situation. When you are in a probate process, research into your situation and its intricacies can save you a lot of money. This is why our blog is dedicated to the providence of valuable information that satisfies your needs.
Questions to Ask a Probate Lawyer
If you decide to hire a probate lawyer, there are a few screening questions you should ask them. Since no one likes surprises in the middle of the working relationship, you must know as much about the individual you pick. The person your hire should fit the bill. Here is a list of questions you can use:
“Have you handled a similar case before?”
You should request the level of experience of the person you intend to hire as your lawyer. You need to work with someone that you believe will guide you through the whole process. When dealing with a complex case, pick someone with great experience in articulating any complex issue that may arise down the road.
“How long do you predict this case will take before the court settles everything?”
It is important to know the possible time that the entire process may take. Your lawyer can always give you an estimate of this as long as everything goes as planned. Knowing the duration of the case is equally important if the probate lawyer will charge an hourly fee for their service.
“For how long have you practiced probate law and estate planning?”
To navigate the entire process quickly, you need to hire someone that has practiced probate law for some time. An individual with long-term experience will also ensure everything is done as per the law.
“Do you practice other areas of law?”
You should know whether the probate lawyer also engages in other aspects of the law. Depending on the complexity of the case and your attention to detail, you should always pick someone who entirely deals with probate cases. This guarantees you a fruitful probate process due to their nature of experience.
“Have you practiced before the court that is handling my case?”
You should also consider hiring someone familiar with the judges of the court in which your case has been placed. We all know that judges have unique ways of handling issues. It is important to hire someone who already knows how a particular judge handles every case.
“What fees do you charge?”
Oh, yeah! You should also know what the probate lawyer charges. Of course, the fee should be reasonable and within your budget. You must agree with the lawyer whether you’ll be comfortable with a flat rate or an hourly fee for the probate case.
A People’s Choice can also save you a whole lot of money by helping you to prepare your legal documents instead of an expensive attorney. Check out more information from our blog that will ease you through the probate process. You can learn more about how to probate a will in California, what California probate is, and the California probate code.
To save yourself precious time and energy, A People’s Choice is the right place to seek all the legal information you may need. We have seasoned professionals at hand who are always willing to guide and help you through the preparation of your legal documents as well as through your legal processes. You can get started here or contact us at 800-747-2780 for more guidance.
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