If you are a personal representative or executor of an estate or even just a beneficiary, you may have heard the term “probate attorney” mentioned. You may wonder if you need to hire a lawyer to handle the estate or even question their job in handling an estate. It’s important in your job as the personal representative that you understand what a probate lawyer does, when they are necessary and your role when working with one.
What is a Probate Lawyer?
A probate lawyer is an attorney who offers legal counsel and assistance to the personal representative or executor of an estate throughout the probate process. Probate is a complicated process that can take months to complete or even years in some cases. There are numerous steps to the process which the personal representative is responsible to complete. They can also be held liable for mistakes that may occur during the process. A probate lawyer can help them navigate this complicated situation.
Is a Probate Attorney the Same as an Estate Attorney?
A probate attorney may also be known as an estate attorney. The two terms technically mean the same thing. Sometimes people associate an estate attorney with a probate process that is larger and has more assets. However, the attorney can work with estates of any size as they go through probate. The attorney can even guide the personal representative or beneficiaries to know when an estate doesn’t need to go through probate.
What Does a Probate Attorney Do?
The role of a probate attorney can vary, depending on the size and complexity of the estate. In the simplest situations, they may act as an advisor, answering questions or directing the personal representative in the steps to take to complete the probate process.
In more complicated estates, the attorney often has a significant role. They may help find, identify and secure assets of the estate. They can get appraisals for any real estate that belonged to the decedent. Once the inventory is complete and creditors have been notified, the attorney can help pay the debts of the estate. They may also assist with selling off assets to pay those debts if there aren’t enough liquid assets.
There can be a lot of paperwork in dispersing an estate. An attorney can fill out those documents, such as preparing income tax returns. They will also be able to determine if an estate or inheritance tax is applicable and pay those taxes. The attorney may manage any checking accounts of the estate and collect proceeds from life insurance policies and other accounts.
Once the debts and taxes have been paid, the attorney can help transfer assets from the decedent to the beneficiaries according to the will or state law. They may be responsible for distributing the assets and closing probate for the estate once everything is finished.
One of the most important roles for a probate attorney is to deal with those who contest the will or creditors putting in a claim against the estate which the personal representative denies. In these situations, the attorney may present supporting evidence to the court on behalf of the estate.
What Information to Know Before Contacting a Probate Attorney
Before you contact a probate attorney, you should know what you need them for. It’s helpful to have an idea of the assets owned by the estate and if you anticipate problems with beneficiaries or other involved parties.
Find out how the assets are being held. If they must go through probate, you may need to hire an attorney. It’s also helpful to know if the estate qualifies for an informal probate process, which is usually a designated maximum dollar amount. Informal proceedings are usually less cumbersome and don’t need an attorney.
When You Will Likely Need a Probate Attorney
Not all estates will need to hire a probate attorney. If the assets include a named beneficiary and the estate is below a certain dollar amount for value, the personal representative may not even need to go through probate.
In other cases, the probate process for the estate may move along smoothly with no need for legal counsel from an attorney. However, there are other instances where a probate lawyer is helpful and even necessary for the estate to be dispersed.
If a contract is necessary during probate, an attorney may need to draft the document. For instance, a group of three siblings each inherit their parents’ home. Two of the siblings want to sell, but the third sibling wants to live in the home. The other two would need to sell their portions to the third sibling. A contract would be necessary to sell the property to the third sibling.
When an estate includes a business owned by the deceased, an attorney is often needed to close the business, sell it or transfer ownership legally. If the business was a partnership, the decedent’s portion must be sold or transferred to the partner.
If a conflict arises about the will, a lawyer may be necessary to represent the estate. Perhaps a second set of children from a second spouse didn’t receive equal shares in the estate, and they are protesting. The attorney would help settle the dispute or represent the estate and decedent’s wishes in court. Many times, the attorney can find a resolution without the delay and expense of taking the issue to court.
Sometimes, the wording of a will isn’t clear on certain points. An attorney may be required to interpret the meaning or take the will to court to determine the interpretation. If the personal representative denies a claim made by a creditor, they may need a lawyer to defend their actions.
Hiring a probate attorney will cost money, so it’s important to know why you need one, when to hire one and when you can get by without one. However, they can make complex issues get resolved more easily and the probate process get completed with fewer delays.
How a Probate Lawyer Advises and Assists a Personal Representative
Sometimes a personal representative may want to hire a probate lawyer to assist them through the probate process. They know they are responsible for the handling of the estate and may not feel comfortable with the heavy weight of that task alone. An attorney can ensure they meet all the requirements of the job and protect them if the beneficiaries dispute their actions.
A probate attorney can provide valuable assistance to the personal representative. Some ways they do that is as follows:
- Locates estate assets, including those not part of probate, and secures them
- Gets appraisals and values of property at the time of the person’s death
- Prepares documents for probate, including filing the estate in probate court
- Collects proceeds from life insurance policies
- Handles retirement plans, such as 401ks and IRAs
- Helps with paying bills for the estate
- Advises on tax issues
- Settles disputes made against the personal representative by the heirs
- Gets the permission of the court for the personal representative to take necessary action with the estate – this may include selling assets to pay debts
- Transfers title from decedent to beneficiaries as outlined in the will
The exact tasks of a probate attorney will vary based on the complexity of the estate and the knowledge and time of the personal representative. If the personal representative lives out of state or doesn’t have time to take on the tasks of the role, they may hire an attorney to deal with those jobs. While the role of a probate attorney doesn’t sound very glamorous, it is often pivotal to making sure the probate process moves along with no issues.
If you are the personal administrative for an estate, you may want to work with a probate attorney. Know when hiring a lawyer is the right move based on the estate and your unique situation. They can provide valuable advice and assistance to protect you and the estate.