What Is a Probate Lawyer?

What Does a Probate Attorney Do?

Probate attorneys can take on the role of administrators, representatives, or executors of estates and if an executor of a will is already appointed, a probate attorney can assist such executor or the beneficiaries of an estate get through the probate process. They provide services such as overseeing and paying debts of the estate, distributing the assets, and settling the estate.

Separately, probate attorneys also assist with estate planning, which can be anything from setting up a guardianship, to providing advice regarding powers of attorney, to creating a will and a trust to ensure their clients can settle their financial affairs and healthcare decisions prior to their death.

Additionally, some probate attorneys specialize in estate and trust litigation which are actual lawsuits that arise related to the decedent’s estate, referred to as probate litigators.

When There Is a Will

When there is a valid will, an Orange County probate attorney may be hired to consult with and guide the administrator through the steps of the probate process according to the terms of the will.

However, if there is a challenge to the will (i.e. if someone wants to contest being excluded out of a will or if a beneficiary believes the will is invalid because they believe it was signed under duress, or under the undue influence of another), then a probate attorney may represent a party in probate litigation. Though there are numerous reasons why a will might be challenged, most wills go through probate without a problem.

When There Is No Will

When a decedent leaves no valid, written will, it is understood that they have died “intestate,” which means the intestacy (inheritance) laws of the state where the estate is located, will determine who inherits estate assets.

In this scenario, regardless of what the deceased person said while they were alive, or how much some family members may need money, the assets become frozen until the court system decides how to distribute the estate based on the state’s laws. Not all states are created equal when it comes to inheritance laws. Depending on the state, a surviving spouse may receive all or half of their deceased spouse’s property, thus, leaving no will behind can be time-consuming and not always ideal for your surviving family members and relatives.

Do I Need a Lawyer for Probate?

Though you can go through probate without an attorney, some estates can be more complicated than others due to certain factors that may lead you to consider retaining one.

Some things you may want to consider when trying to decide if you need a probate attorney are:

  • The size of the estate;
  • Whether the decedent only left a will rather than a trust or both;
  • The inheritance laws of the state where the estate resides;
  • The existence of contentious relationships;
  • Any complicated designations noted.

Now, if the decedent only had a will at time of death, probate is inevitably required, and obviously, the more complicated an estate is, the more enticed you may be to hire an attorney. However, on the other hand, if the decedent had a well-aligned will and trust, things may go pretty smoothly, and a probate attorney may not be necessary at all as the probate court itself can be very helpful to executors and administrators.

It’s never a bad idea to vet an attorney with a consultation nonetheless, because after all the considerations above, if you feel you can attempt the probate process without an attorney, should a problem arise later, you can always hire one that you have established is specialized in the field and can help you.

How Much Does a Probate Lawyer Cost?

Probate attorneys typically charge their clients one of three ways:

  • An hourly rate for services
  • A flat fee
  • A percentage of the estate’s value

States vary on the allowed percentage an attorney may charge from the estate’s value. For example in California, a percentage of value fee looks like this:

  • 4% for the first $100,000 (up to $4,000)
  • 3% of the next $100,000  (up to$3,000)
  • 2% of the next $800,000 (up to $16,000)
  • 1% of the next $9m
  • ½% of the next $15m
  • a “reasonable amount” for estates valued over $25m

Thus, an estate valued at one million ($1,000,000) dollars would be charged an attorney fee of approximately $23,000 which may be considered reasonable for the proper handling of such a valued estate.

Questions To Ask a Probate Attorney

Asking questions is always a good way to go. For one, it ensures there are no (costly) surprises along the way and apart from it providing you necessary information, it will help you find an attorney who will be the right fit for your precise needs.

Some helpful questions to ask when wanting to choose the right attorney are:

  • How long have you been practicing probate law or handling estate planning?
  • Do you practice any other areas of law?
  • Have you practiced before the court my case will be assigned to?
  • Have you handled cases similar to mine in the past? 
  • How long will my case last?
  • What are your fees?

These questions can save you from potential mishaps, timely delays and ultimately, help keep more money in your pocket along the way!

An attorney with experience will be more efficient in getting the job done, and knowing their way around the system with more ease, which in turn, will save you time and money.

It is important to note, that if an attorney does not particularly specialize in estate law, it could become a costly situation for you as a result of their inexperience.

Also as important, is finding a probate attorney experienced in the jurisdiction of your court proceedings as judges tend to have their own slight variation of rules and unique ways of handling cases. Thus, a probate attorney who is familiar with such Judges and preferences can make the process a lot smoother.

If your case is complicated, or if the estate is very large, an experienced attorney can provide insight on the average timeframe of the proceedings. Obviously, an attorney cannot be precise as things can arise unexpectedly. However, time is always of the essence when it is costing you by the hour, so this might be one of the most important questions to ask!

The last question with regard to fees will help provide you with a proper expectation of cost. Undoubtedly, having a concrete understanding of the fees will help set your mind at ease and given you now know of the different methods an attorney might use to charge for their fees, you can consider if the fees are at a price point you can afford for services rendered.

All these questions serve to benefit you, the client, and help make the best of your working relationship with the attorney that best suits your needs.

We at Evolution Tax and Legal hope we have provided you with valuable information and we welcome your questions and the opportunity to best serve you.

July 19, 2022

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