When a person dies and leaves a property or estate behind, a probate lawyer helps executors of the estate manage the probate process. This involves helping with the estate planning, managing trusts, drafting wills, representing clients in court and acting as administrator or executor of the will or trust. Finding a qualified probate attorney can be time consuming and confusing, especially if you’ve never hired one. Here are some tips and information on hiring the appropriate lawyer.
Types of Probate Lawyer
Usually there are two types of probate lawyers. Transactional probate lawyers are more experienced in drafting or modifying a living trust, or handling the administration of estates and trusts. Probate litigators, on the other hand, are better at representing clients in probate court cases who face opposition from family members, creditors or other parties that wish to contest the will or trust.
Some lawyers can take on both types of responsibilities but often, probate attorneys focus in one area or the other. A written will or living trust, or lack of one, is a major factor to consider when selecting what type of probate attorney you’ll need.
Role of a Will and Living Trust in Probate Process
A will is a legally enforceable document prepared by the deceased prior to his or her death. A will is a common document included in an estate plan and can make the probate process easier for the beneficiaries on various legal matters.
If the deceased left a will or had a living trust in place the probate lawyer can review it to make sure of it’s legitimacy, potential issues and identify any mistakes made in the documents. Elderly people with dementia for instance could be vulnerable to undue influence by individuals who may influence them to leave them a cut of the property.
A probate lawyer can also help in the following.
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Appraising the total value of the property left for the heirs.
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Managing and collecting life insurance proceeds for the deceased.
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Preparing, reviewing and filing of the documents required by probate court.
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Locating and securing all the assets of the deceased for the descendants.
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Advising the beneficiaries on what to do with the debts of the deceased.
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Managing the checkbooks and accounts for the estate.
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Determining and addressing all the state and federal taxes.
Obviously, when there is a legally written and binding will left by the deceased a transactional probate attorney would be more suitable to hire.
Lack of a Written Will
When a person dies without leaving a written and signed will, their properties are considered to be in intestate. Under this condition, the estate is distributed according to the intestacy laws of the state where the property resides and probate court court will be necessary. For most states, the property is transferred to the surviving spouse of the deceased. For some states, the property is distributed to the spouse, children, siblings and any other close relatives.
Cases of intestate inheritance can also be raised in the court where one claimant may request a suspension of intestacy law in his or her favor. A probate litigation attorney can represent different claimants in court to help distribute the estate. The probate attorney would need to secure renunciation from the descendant’s other relatives first.
Selecting a Probate Lawyer
In order to get the best probate lawyer for your estate administration or litigation, you should ask them some questions before hiring. The following are some of the questions you should ask your lawyer.
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Ask your lawyer how many probate cases have they managed and how long they have been working as probate attorneys.
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Inquire how they charge for their services.
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Ask them for a detail of the services they will perform including final state and federal tax settlement.
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Ask the lawyer how long they believe the probate process will take.
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Ask the attorney how much will it cost in total for the process to complete.
