Coping with the loss of a loved one is incredibly difficult. There are memories and emotions to process, along with final services and arrangements to make. In the midst of all that, the last thing anybody needs is the stress of the probate process. In some cases, a probate lawyer can provide simplicity. But before hiring one, it’s important to fully understand their role and what you can expect.

Important Probate Terms to Know

Before diving into the details, let’s evaluate some important terms to know:

  • Probate: Probate is a legal process in which a will is analyzed to determine its validity. 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 is an individual who has made a will or someone who has given a legacy.
  • Will: A will is a binding legal document that explains in detail how a person wants their property and assets to be distributed after their death.
  • Estate: An estate refers to the money and property of an individual at death.
  • Executor: An executor is a person nominated through a will who facilitates the distribution of the decedent’s assets.
  • Personal Representative: In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court to act as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries.
  • Fiduciary: A fiduciary is someone who manages money or property for someone else, whether it be through a trust, probate or other legal process.
  • Intestate: This is the term used to describe an individual who, upon death, has no written will.
  • Renunciation: A renunciation is a legal document which refuses or resigns a right by the signer. In probate, renunciation often refers to the right to administer someone’s estate, allowing someone else to act.
  • Administrator: An administrator is an individual who manages and oversees the estate of a deceased person when they die. In California, the priority for being appointed administrator in an intestate estate is the surviving spouse or domestic partner, then children, and lastly grandchildren. If the person who wishes to be the estate administrator falls outside this priority list, they may have to first obtain renunciation from the deceased’s 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, 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 handle issues to do with:

  • Creating a will
  • Setting up a guardianship
  • Writing  a trust

The fees charged by a probate lawyer vary based on the matter. They may either charge a flat fee or an hourly rate. In the filing of probate, California has established a statutory fee schedule based on the size of the estate. 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 define probate as the general administration of a deceased person’s will or the estate of a deceased person without a will. If there is a will, the court will determine its validity. A probate lawyer is involved in the administration of the estate to ensure a smooth transfer of estate property to the rightful beneficiaries. Beneficiaries of the estate are determined by the will or intestate law. Although most probate matters do not require legal representation, if the family decides to hire a probate attorney, they will work in conjunction with the personal representative.

The Role of a Probate Lawyer

When people die, and after a certain period of time, their estate assets should be distributed to their lawful heirs and beneficiaries.  This happens according to the decedent’s expressed wishes in their will or, if intestate, according to the laws of the state. To do this, although not necessary, some individuals enlist the services of a probate lawyer.

The probate lawyer can assist the personal representative 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 personal representative administers the estate without bias per state laws. They ensure that all estate beneficiaries receive their fair share. When handing over the assets to beneficiaries, the personal representative can always seek legal advice from the probate lawyer.

The probate process includes the following steps:

  1. Identify the deceased’s assets based on their estate plan
  2. Appraise the deceased’s properties
  3. Collect and manage proceeds from insurance policies
  4. Pay the deceased’s bills (this may also include estate tax returns)
  5. Settle the deceased’s outstanding debts (only legitimate debts)
  6. Prepare and file documents needed in the probate court
  7. Manage and settle any estate or inheritance taxes
  8. Manage the estate checkbook
  9. Transfer assets to appropriate beneficiaries
  10. Recover any estate debt 

It’s important to know that the probate process can be avoided if the deceased person’s estate has been property placed in a trust before death. Having a trust can avoid the need to file probate if all assets have been properly placed in the trust, and the assets can be distributed directly to the trust beneficiaries without a court proceeding.

When Do You Need a Probate Lawyer?

Whether or not you need a probate lawyer largely depends on how comfortable you feel representing yourself in the process combined with the level of outside, non-attorney help you seek out. There are a few factors to help you decide whether you should hire a probate lawyer.

Consider the following:

  • What is your state’s probate process?
  • How much is your estate worth?
  • What types of properties are in your estate; i.e. retirement accounts and any life insurance policies?
  • Is your estate distributable without probate?
  • Are your beneficiaries united?
  • Do you pay estate taxes?
  • Is there a will?

Here are some options based on your answers:

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 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 undue influence. This can sometimes be the case for some elderly people living with dementia, who may be influenced 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 without writing or signing a will, their estate is distributed according to the intestacy laws of the state where the estate is established. 

Under many states’ intestacy laws, if a deceased person was married at the time of their death, their surviving spouse is entitled to the decedent’s share of all community property but only a portion of the decedent’s separate property.

A probate lawyer in this case 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. When a will is not involved, the probate lawyer performs all duties according to the state’s intestacy laws. The deceased’s wishes, stipulations, or their survivors’ needs cannot be factored in.

The Cost to Hire a Probate Lawyer

The cost of a probate lawyer varies based on their chosen method to charge clients for their services. The options are often:

  • 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 costly.

In California, the price of probate lawyers is set on a sliding scale, based on the total value of the estate.

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 providing 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. 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 you believe will guide you through the entire 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’s important to have a clear understanding of how long the process might take. Your lawyer can always give you an estimate for several scenarios. 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 who has practiced probate law for some time. An individual with long-term experience will also ensure everything is done in line with legal requirements.

“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. 

“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 different cases.

“What fees do you charge?”

Price will be one of your most important considerations. 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. Remember, most California probate attorneys charge fees according to the statutory fee schedule referenced earlier.

A People’s Choice can also save you a substantial amount of money by helping you to prepare your legal documents instead of an expensive attorney. A People’s Choice does not base its fees on the value of the estate, but rather a reasonable flat fee for standard documents in every probate case we handle. 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 on 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 805-521-8077.