A probate lawyer is a state licensed attorney who works with the executors and the beneficiaries of an estate to settle the affairs of the decedent. In some instances, probate can be avoided if all the decedent’s assets have been placed in a trust. A trust can ensure a smooth transfer of property outside of court and legal proceedings.
Is a probate lawyer the same as an estate attorney?
A probate lawyer is also known as an estate attorney and will be involved in different ways depending on the particular circumstances of that estate. Their involvement will depend on the value of the decedent’s assets and whether or not they had a last will and testament at the time they passed away. In cases where no will exists, beneficiaries file claims and sue for what they believe they are entitled to. In situations where there is a will, challenges may arise as to the validity of the will, also leading to possible litigation.
What does a probate lawyer do?
Specifically, here are some of the common tasks a probate lawyer may assist an executor and beneficiaries with during The Probate Process:
• Collecting proceeds from life insurance policies
• Identifying and securing estate assets
• Obtaining appraisals for the decedent’s real property
• Assisting in the payment of bills and debts
• Preparing and filing all documents required by a probate court
• Determining if any estate or inheritance taxes are due, and making sure those debts are satisfied
• Resolving income tax issues
• Managing the estate checking account
• Transferring assets in the decedent’s name to the appropriate beneficiaries
• Making a final disbursement of assets to beneficiaries after all bills and taxes have been paid
Hiring a Probate Lawyer: With a Will
The process will likely go smoother when the decedent has drafted a will prior to his or her death. If an individual dies 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. Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor:
• 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 debts;
• Preparing/filing documents as required by probate court;
• Managing the estate’s check-book; and
• Determining whether any estate taxes are owed.
Hiring a Probate Lawyer: Without a 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, the 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 lawyer 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 lawyer 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 are 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 probate court, and then assist the administrator with The Probate Process (managing the estate check-book, determining estate taxes, securing assets, etc.).
Personal Representatives in Testate Estates
A “testate” estate is one that has a valid last will and testament. A will should — and usually does — name the individual the decedent would like to serve as his personal representative or executor. Courts almost invariably honor the decedent’s wishes if the person he named is still alive and is otherwise able to serve. Why wouldn’t the person named as personal representative in the last will and testament legally be allowed to serve? This can happen if he doesn’t meet all the criteria under the state’s law. He might have been convicted of a crime, or he’s suffered some mental decline that would prevent him from meeting his duties. Maybe he’s not yet legally of age. Minors and convicted felons typically can’t serve as personal representatives, nor can banks or trust companies that don’t have fiduciary powers in the state where probate is taking place. Some states have more specific rules. For example, a person can’t serve as a personal representative in Florida unless he is related to the decedent by blood or marriage, or, if he’s not, he is a Utah resident.
When Beneficiaries Object to a Personal Representative
Beneficiaries or heirs can contest a will and object to the personal representative the decedent named in his will. This usually results in a full-blown trial where the beneficiaries and others can present evidence and testimony to convince the judge to overturn the provisions of the will or to honor them. Courts usually prefer to honor the decedent’s wishes whenever possible. When a will is contested over who has been named as personal representative, the judge will make the ultimate decision as to who will serve — the personal representative named in the will or perhaps another party nominated by the beneficiaries, or someone else entirely that the judge selects. These rules and laws can vary from state to state. What holds true in Utah might not be the case in New Hampshire. If you’re planning your will and you’re unsure about the person you want to name, check with a local attorney.
Personal Representatives in Intestate Estates
If the decedent didn’t have a last will and testament, the intestacy laws of the state where he lived at the time of death take over. The court will determine who has priority to serve as personal representative in this case, and the position is often called the “administrator” of the estate. It’s usually the surviving spouse, but if she is unwilling or unable to take on the responsibility, a surviving child or children may be appointed. The judge will work down a list of kin until someone appropriate can be appointed, maybe a surviving parent, sibling, niece or nephew, or someone steps forward to request the job. Typically, if the decedent’s heirs-at-law — those entitled to inherit from him without a will — can agree on who should serve, the probate judge will simply appoint that person. But if the heirs-at-law don’t agree, the probate judge will make the decision based on state rules and statutes
How to probate a will without an attorney
The Probate Process
• Petition the court to be the estate representative: The court will require the petitioner (person asking the court to appoint an official representative) to fill out specific forms. These forms can (with the help of EZ-Probate) be filled out by you. It will be the basic Who, What, When, Where etc. types of questions.
What you will need: A valid will, a copy of a will, or know for sure there is no will.
When would you need an attorney: In this part (filling out the court form) there probably is no need unless you don’t understand what the will is instructing the executor to do.
• Notify heirs and creditors: The court will provide you forms to fill out to notify heirs (listed in a will, or if no will state law dictate who the heirs are). Additionally the representative is also responsible to find out what debts the deceased had and devise a plan to pay those debts. Remember, only assets that pass through probate are liable to pay debts. Learn which assets pass through probate here.
What you will need: a clear understanding of who the heirs are (will or state succession laws), and a reasonable attempt to uncover debts.
When would you need an attorney: If you don’t understand the will or need help determining who the heirs are. Note that all states post the “succession laws” and you can Google them by searching: (state) succession law, or (state) intestate succession.
• Change legal ownership of assets: This may be the most straightforward part. With the court appointment, you will now be able to change assets owned by deceased to the “estate of…”
What you will need: Court appointment and knowledge of what the deceased owned.
When you would need an attorney: There may be assets that have complicated ownership, businesses, royalties, mineral rights etc. If you are unsure how to transfer ownership, then an attorney is needed. For most common assets (bank accounts, investments, property) you will be able to do it yourself.
• Pay Funeral Expenses, Taxes, Debts and Transfer assets to heirs: Note the order that you will need to prioritize payments. The court places priority on payment of funeral, taxes and debts before any payments to heirs.
What you will need: A good accounting of all assets, debts and likely tax liability. The executor is responsible (personally) to ensure that all attempts are made to pay funeral expenses and taxes.
When would you need an attorney: If you don’t have enough money to pay for all of the estate expenses, particularly the taxes.
• Tell the court what you have done and close the estate: This is when you report to the court and show proof that you have done everything needed to close the estate.
What you will need: Good documentation of what you have done and the court will provide you with a template to use to report your actions.
When would you need an attorney: We recommend that at this point everyone should consult with an attorney to review your taken actions. Although not necessary, it is wise to have an expert’s eye on your actions to avoid any costly (personally to you) mistakes.
How to Find the Right Probate Lawyer
• Finding Candidates to Interview: It’s not usually difficult to get the name of a local lawyer or two who handles probates and estates. Probates are generally profitable for lawyers, so they’re happy to take on the work.
• Interviewing the Probate Lawyer: When you first sit down with a lawyer you’re thinking about hiring, make it clear up front that you plan to talk to several lawyers before you hire one for the estate work. Then try to ask some questions before you get into the details of a probate court proceeding. A lawyer who has handled a lot of probates may assume that you’re on board and quickly start asking you for documents and information.
Finding the Attorney Who’s a Good Fit for You
Finding a local attorney who is experienced and competent when it comes to handling a probate court proceeding may not be the hardest part of finding the right lawyer. Most probate cases aren’t complicated; they require careful attention to detail, but you don’t need a courtroom star. Most probates consist almost entirely of routine paperwork. And if you are interviewing lawyers who were personally recommended to you by friends or other local professionals, they’re probably competent. Having a successful working relationship with a lawyer, however, takes more than legal knowledge. So pay attention to how clearly the lawyer explains the process, how well the lawyer listens to your concerns, and how respectful the lawyer is. Make sure you’re signing up with someone who:
• Communicates clearly. Some lawyers just can’t seem to talk in plain English. If you can’t understand what the lawyer is talking about and don’t get good explanations when you ask for clarification, look elsewhere.
• Respects your efforts to educate yourself. If you’re doing your best to learn about your responsibilities as an executor—and possibly do some of the work yourself to save on fees—you want a lawyer who will cooperate respectfully.
Local Probate Lawyer Free Consultation
When you need legal help from a local probate lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506