Do I Need An Attorney To Probate A Will?

Do I Need An Attorney To Probate A Will?

No, you don’t have to have one, but you will want one. Just like you wouldn’t want to give yourself a filling – you go to a dentist; and just like you wouldn’t do your own brain surgery; you go to a probate lawyer when you need to probate a will. 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. Probate Attorneys always file cases in the probate courts. In Utah, the State District Courts are where probate cases are filed. Typically, the probate case is filed in the district where the decedent resided when they passed away or where they owned property that needs administration by the probate court.

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 In A Probate Case In Utah

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.

Important Dates For A Probate Lawyer

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.

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?

Utah 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.

Utah 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.

Utah Probate Lawyer For Administration Of Estate

When you need help with a Probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews

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Probate a Will

Because I am a probate lawyer, I’ve often asked about how to probate a will.

Probate is the procedure by which a person’s Will is given validity by the Court.  The probate Utah State process can be complex. A formal petition, the original Will, witness affidavits and proper notice to family members and others are among the papers required in the Utah State probate process.

Probate a Will

Probate of a Last Will occurs in the Surrogate’s Court.  For the most part, there is a Surrogate’s Court located in each county in Utah such as the Queens Surrogate’s Court, Kings Surrogate’s Court and Utah Surrogate’s Court.

The Utah Probate Process is guided by two primary sources of law.  One is the Estates, Powers and Trusts Law (“EPTL”) and the other is the Surrogate’s Court Procedure Act (“SCPA”).  These statutes, along with various Court decisions and rules, provide the basis for probating a Utah Will.  When a person dies without a Last Will, such a situation results in an Intestate Estate.  The statutes provide different procedures in these cases, as a state probate lawyer in Utah can explain.  Whether an estate is subject to probate or intestate administration proceedings, the Surrogate’s Court requires that it be provided with all detailed information regarding a decedent including names and addresses of next of kin (“distributees”) and assets.

It may not always be easy to provide complete information as to a person’s next of kin.  In many instances, where the only surviving relatives are cousins or more distant relations, such person’s whereabouts and family connection to the decedent can be hard to find and to prove.  Relatives might be scattered throughout many states or countries and they may not have had any contact with the decedent for decades, if at all.  These issues are often resolved in Kinship Hearings.  These hearings require that the Court be provided with the testimony of disinterested persons and certified records such as birth, death and marriage certificates all of which are needed to demonstrate kinship to the decedent.

The vast majority of Probate cases do not involve Estate Litigation such as Will Contests or persons contesting a Will.  However, these types of controversies do arise on occasion and require extensive involvement by Utah Probate Lawyers to resolve. In the case of a Will Contest, SCPA Section 1404 provides an aggrieved party the opportunity to examine documents relating to the preparation of the Last Will and to take the testimony of the attorney who drafted the Will and the Attesting Witnesses, even before any formal objections to the Will are filed.

Buy-Sell Agreements

It is important for small business owners to consider the consequences and retain a lawyer if one of the owners dies or becomes incapacitated. Such events may jeopardize the continued management or operation of the business. Additionally, the economic effect on the surviving or continuing owners, as well as the family of the departing owner, needs to be taken into account by a Utah City business lawyer.

Buy-sell agreements between business owners in Utah City and elsewhere are designed to resolve these types of situations. Simply stated, these agreements provide procedures whereby one owner or the business itself can purchase the interest of the departing owner. As a result, the operation of the business is not interrupted and the departing owner or his or her family can obtain a payment for his or her interest in the business. Such a payment may not be available in an open market.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate or estate issue you need help with. If you do, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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