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.
Duties of a Probate Lawyers
All the steps involved in probating an estate depend on the probate laws where the decedent lived at the time of death, as well as any other states where the decedent might have owned property. The steps required for settling an estate will differ based on whether the decedent died testate with a valid last will and testament or intestate, without leaving a valid will or other estate plan. A probate lawyer will be well-versed in both situations. A probate lawyer can also be hired to advise beneficiaries of an estate on legal and other matters presented by the personal representative during the course of the probate process. This can become necessary when the beneficiary doesn’t get along with or trust the personal representative. Some probate lawyers specialize in separate lawsuits related to the decedent’s estate. This might happen when a beneficiary challenges the validity of the decedent’s last will and testament through a will contest. These types of attorneys are known as estate litigators, probate litigators, or estate and trust litigators. 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 a lawyer help you through the probate process, it’s always necessary to hire one. Whether you need an attorney or not will depend on how big the estate is. So, before you hire an attorney, ask yourself the following:
• Does your state have a relatively easy probate process?
• Do the family members that are in the will get along with each other?
• Is the money in the estate sufficient to pay debts?
• What type of property is in the estate?
• Can the estate be distributed without probate?
How Much Do Probate Lawyers Typically Charge?
Probate attorneys typically use one of three methods to charge their clients:
• Fees based on hourly services
• Flat fees
• Payments based on a percentage of the estate’s value
The exact amount of fees will depend on the attorney’s experience and other factors like where the attorney practices.
What Questions Should You Ask a Probate Lawyer?
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?
The 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.
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.
Ways to Pay For Probate
• Paying With Your Own Cash: Although probate may costs thousands (if not tens of thousands), some may have that money available. If you’re in position to fund the probate on your own, that is most straightforward route to beginning the estate case.
• Distribution of Estate Proceeds: Attorneys frequently are willing to front the entirety of probate costs if they are confident they will be repaid upon closing the estate. Of course, this is a “leap of faith” on the part of the attorney that there will be moneys left over after all creditors have been paid, and so legal fees are higher in this arrangement. The attorney has incentive to pay for the probate because otherwise they will get no attorney fees whatsoever. It’s a “win win” for you and the lawyer.
• Professional Cash Home Buyer: Real estate is regularly sold during the probate process. Often, the buyer will gladly front all the costs. The advantage of the buyer here is that unless probate gets paid for they can’t buy the house. This arrangement is also helpful for the heirs that don’t have other financial means to begin the probate process.
• Percentage of An Estate: Some attorneys will take on a probate case in return for a percentage of estate proceeds. This arrangement usually applies on “high value” complicated estates where an experienced attorney is absolutely necessary. However financially speaking it is not beneficial for the estate. A percentage of estate proceeds in most cases add up to much more than regular legal fees.
• Pro Bono & Legal Aid: States often waive filing fees when the person filing for probate has income below statutory guidelines.
Ways to Avoid the Probate Process
There are a few different ways to distribute a decedent’s estate that does not involve the probate process. Some of these include:
• Joint Tenancy: This is a type of property ownership in which two or more people own part of a property. When a joint tenant dies, the remaining joint tenants inherit the decedent’s share of the property, as opposed to the decedent’s heirs inheriting the share. Joint tenancy is typically associated with the legal co-ownership of a home, car, or bank account. The property’s co-owner automatically receives full ownership of the asset without having to first go through the probate process in order to pass the title. There are specific conditions that must be met for joint tenancy to exist;
• Life Insurance Policies: Life insurance policies in which a person pays a premium each year and names a beneficiary may circumvent the probate process. The named beneficiary automatically receives the life insurance policy benefits and payout when the policyholder dies; and
• Trusts: Trusts involve transferring the legal title of an asset to a trustee. When the estate owner dies, the named trustee is bound to distribute the decedent’s property according to the terms of the trust.
Pros and Cons of Avoiding the Probate Process
The main advantage to avoiding probate is cost. Probate costs generally include attorney’s fees, and can be costly, especially if the decedent owns property in a different state. This is due to the fact that probate proceedings would be required in both states, although a trust would likely correct this problem. Trusts can also be tailored to meet specific requests, which is not necessarily true of the probate process. Because the execution of a trust is much less formal than that of a will, the terms of a trust can easily be changed to suit the needs of the estate. Another advantage to avoiding the probate process is that the process can be complicated, as well as time consuming. Probate can take up to several years to completely resolve all matters related to the decedent’s estate. Avoiding the process can help settle things more quickly. Another advantage to avoiding the probate process is privacy. Wills and probate proceedings are matters of public record. If you would prefer to keep your affairs private, and that people not involved do not know how your estate was distributed, you will need to distribute your estate through a trust or some other estate planning mechanism.
There are some disadvantages to avoiding probate that you should consider. In general, it costs slightly more to create and fund a trust than it does to create a will. However, as previously mentioned, it could save money in the long run by avoiding paying probate costs out of the estate. Additionally, in order to completely avoid the probate process, you must carefully place all new assets you obtain into the trust. Otherwise, probate may still be necessary. Finally, taxes can be a bit higher for the first years after your death if the estate is distributed through a trust, as opposed to a will. As with any estate planning, you should consult with a skilled and knowledgeable probate attorney. An experienced probate attorney can ensure you understand your state’s laws regarding probate and estate distribution, as well as advise you of your best estate planning options. Additionally, an estate attorney can also advise you regarding the best possible estate plan suited for your needs and the size of your estate. Finally, an attorney can represent you in court, should any dispute arise.
Probate And Estate Terms To Know
• Decedent: When probating a will in Utah, you will likely encounter the term “decedent” often. This is the legal term for the person who has died and whose estate is in the probate process.
• Will: This is the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones.
• Estate: In Utah, an estate consists of all the decedent’s assets. These include, but aren’t limited to, cash, real estate holdings (homes, land, etc.), stocks and bonds, life insurance policies, retirement accounts, vehicles and personal belongings.
• Beneficiaries: These are the loved ones named in a will, or determined by the court if there is no will, who will receive assets from the decedent’s estate.
• Executor: When a person dies with a valid will in place, the document typically names a person to serve as executor of the estate. The chief duties of the executor will be to inventory and catalogue the decedent’s assets; pay debts of the estate; pay taxes of the estate; file lawsuits for claims owed to the estate; and distribute assets from the estate to the beneficiaries as named in the decedent’s Last Will and Testament.
• Administrator: When the decedent has passed on without leaving a valid will and no executor has been named, Utah law requires that an administrator be named to carry out the duties of an executor. The court will often appoint one of the primary heirs to act in this capacity.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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