The first step in hiring a probate attorney is to do your own research. If you have relatives, friends or co-workers whom may have used a local probate or estate planning attorney in the past, ask them for a referral. Another good source of information is searching for an attorney online. It is important to keep in mind you need a probate attorney licensed in your state. Call your county or state bar association and ask if they have an attorney referral service. If you know an attorney that handles other types of legal matters, ask the attorney to recommend a colleague with probate experience. Your local senior citizens center or legal aid office may also provide information about how to hire a probate lawyer your area.
When you need to hire a probate lawyer, talk with at least three different attorneys before choosing one of them to represent you. The more you learn about estate planning and the probate process, the more likely you are to choose a qualified attorney. Ask the attorney how many similar cases he or she has handled successfully. Find out whether the attorney has received any specialized training or education in the field. Discuss fees, when payment is due, and whether you will receive a written fee agreement or retainer agreement. It is a good idea to ask for references from a few other clients.When hiring a probate attorney, don’t be intimidated. You are the client and you should be given certain basic information such as the attorney’s qualifications, the specific services the attorney will perform, and how much you will be charged. While it is always important to understand an attorney’s time equals money, if you are confused about a legal issue, ask the attorney to provide more clarification or address it a second time.
How Much Does a Probate Lawyer Cost?
When a probate attorney provides legal services to administer or probate an estate the attorneys’ fees are often set by state probate codes or other applicable state laws. These are sometimes referred to as statutory fees. For example, some state statutes permit the probate lawyer to charge a percentage of the value of the estate while other states allow the attorney to charge a reasonable fee. The laws vary from state to state on what a probate lawyer can charge. Many probate law firms charge a negotiated rate or fee structure rather than billing the maximum amount allowed by statute. If the estate goes through formal probate proceedings, court approval of attorneys’ fees may be required. If the attorney provides ancillary or extraordinary services in addition to those directly related to probate of an estate, the attorney may charge an hourly rate or a flat fee for those services, depending on terms agreed upon between attorney and client.To find out how much a probate lawyer will charge, call the attorney to discuss your case. Some attorneys offer a free consultation by phone, and sometimes in person, to determine if they offer the types of services you need. The legal fees to probate an estate are paid from the assets of the estate. However, probate lawyers usually accept credit cards and some offer other types of financing such as installment billing.Probate lawyer fees and court costs can be very expensive. Many people decide to make a living trust part of their estate plan so their children, grandchildren and other heirs will receive a larger inheritance. Our free Living Trust Guide provides information about how to pass your assets to your beneficiaries through an estate planning trust. To learn more about other types of trusts that may be used to pass property to your heirs outside of probate, our Other Types of Trusts page is a good starting point.
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What Does a Probate Lawyer Do?
A probate attorney represents clients in a variety of legal issues involving probate and administration of estates and trusts. Probate lawyers also typically handle related matters such as conservatorship, guardianship, and claims of creditors. Probate lawyers must have a solid understanding of state probate codes or statutes, local court rules and procedures, and other state laws that apply to the probate process. They open and close estates, prepare probate court forms, and draft legal documents that must be submitted in the probate of an estate. Probate attorneys must make court appearances such as attending probate hearings and may represent their clients at trial if an estate matter is litigated. Therefore, a probate attorney may need experience in litigation.A probate lawyer may advise the executor, personal representative or administrator of an estate or the trustee of a living trust regarding matters such as fiduciary duty, estate and trust administration, creditor claims, and taxes. They prepare Inventory of Estate forms, accountings, and appraisals of estate and trust assets. Some probate attorneys assist the personal representative or trustee with filing federal and state income and estate tax returns. They may help the executor or personal representative collect estate property, file claims for life insurance, social security, pension or retirement benefits, change stock certificate registrations, or handle title issues that arise with joint tenancy or community property of the deceased person.In addition to representing individuals responsible for estate administration, probate lawyers also represent parties with an interest in inheriting from the estate, such as beneficiaries or heirs, and those with unpaid claims against the estate, such as creditors. They may represent parties who wish to challenge the validity of a will or living trust based on incapacity, undue influence or improper execution or parties in a dispute over the terms of a will, trust or power of attorney. A probate attorney can also represent a trustee, personal representative or guardian that has been sued for breach of fiduciary duty or misappropriation of the assets of an estate or trust.
When to Hire a Probate Attorney
It is better to consult a probate lawyer BEFORE you actually need to retain one to assist with settling an estate. A probate lawyer can provide essential advice on steps that should be taken before a person becomes ill or passes. If you wait to get instructions from an estate lawyer until after the testator has died, you may forfeit the opportunity to take steps that could improve the outcome of estate administration. If you do not have prior experience in estates and trusts, there are probably many issues you have not considered regarding the probate of an estate, serving as executor or receiving an inheritance.If you have never had an attorney represent you, taking the first step to call an attorney can be difficult. Many people are more comfortable attempting to handle legal work on their own or using a self-help legal service online. However, it is important to recognize when it is essential to hire a licensed professional. Time is of the essence in probate, trust, and estate matters. Failure to act promptly and within the requirements of applicable law can be very costly. The only way to be certain about whether you need the services of a probate lawyer is to consult an attorney and explain your unique circumstances. If any of the following describe you or the estate matter you are handling, you may benefit from hiring a probate lawyer:
If you are acting as agent for an incapacitated person under a power of attorney document;
If you need to open an estate account to process deposits, payments or transactions for a relative, friend or partner;
If you represent a deceased person’s estate and there are creditors claims against the estate;
If you are administering an estate and a beneficiary or heir has threatened to contest or file a lawsuit over the terms of the will or living trust;
If you are the trustee of a living trust and need assistance transferring title to trust assets to trust beneficiaries;
If the will or living trust requires distribution of the estate to the beneficiaries in unequal shares and you are unsure how to develop a plan of distribution;
If you are administering an estate for a deceased person who owned property in more than one state and an Ancillary Probate Estate may be required;
If you are the beneficiary of a will or living trust and wish to dispute the amount of inheritance you are to receive;
If you are an heir of the decedent and were disinherited by the decedent's will or living trust;
If you were the husband or wife of the deceased person and want to claim your elective share of the estate or challenge the inheritance you are to receive under decedent’s estate plan;
If you were born to unmarried parents, are adopted or are part of a family with stepparents and have questions about elective shares, intestacy, probate, and the inheritance rights of spouses, children or siblings;
If you need information on guardianship or conservatorship; or
If you have questions about elective shares, intestacy, probate, and inheritance rights of domestic partners or unmarried couples in your state.The above list does not include all the situations which may require the services of a probate attorney. Contact an attorney licensed in your state for more information. Finding an attorney.
INFORMATION ON THIS SITE, INCLUDING ARTICLES, ESTATE PLANNING FORMS, AND THE ESTATE PLANNING BLOG, DOES NOT CONSTITUTE LEGAL, FINANCIAL OR TAX ADVICE. Pennyborn.com is not a law firm and is not a substitute for a lawyer. Your use of this site does not create an attorney-client relationship. Information on this site is for educational purposes only and may not be accurate, complete or up to date.
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