There’s much to consider when a person passes away, from the familial aspects to the financial matters that need to be handled and smoothed out. There are some things that require the involvement of the local authorities/federal government after someone passes away and this is where probate lawyers come in.
Everything that a person leaves behind when they leave this mortal world needs to be dealt with according to the state’s law. Especially all the assets that need to reach where the deceased wished them to be. The will is a document that helps make the disbursement easier by allowing the executor in the case to carry it out, with the help of the probate lawyer. The beneficiaries of the assets are either mentioned in the will presented by the deceased’s lawyer or followed through according to local laws. The process includes everything from identifying the beneficiaries, the assets that need distributing, and the process of distribution itself.
The following section will answer commonly asked questions regarding the procedure:
What does a probate lawyer do?
A probate lawyer handles the entire probate process after a person passes away. This includes handling the debts, loans, and distribution of whatever inheritance they left behind including estate or other assets. But this entire process is dependent upon whether the deceased left behind a will or not. Also known as trust lawyers or estate lawyers, apart from the disbursement of assets, they can also help with estate planning beforehand. Let’s look at both scenarios and the roles they play in it:
In case of a will present
The process in case of a will that clearly states where all the assets go, comes easy. The lawyer assigned in the case cross-examines the legitimacy of the will and whether it was drawn and signed under normal circumstances and not under duress or blackmail.
Even though a majority of the wills go through probate without any difficulty, there are still chances to challenge the document in case something seems less than legitimate.
In case of no will present
Intestate is a scenario that occurs when a person passes away without having drawn a will. This is done both intentionally and unintentionally such as when someone dies prematurely. In such cases, there are intestacy laws that are followed to carry out the procedure. In this case, there is no personal opinion with regard to any of the concerning parties, the executor and lawyer follow what the state’s law requires of them.
Different states have different laws for intestacy and it all depends on which state your assets are in. A majority of the states for example require all the inheritance to go to a person’s partner in case they are married. The probate lawyer is hired to make sure the entire process runs smoothly, according to the concerning law. There is a property administrator in this case that is chosen by the close relatives who carry out the entire process with the assistance of the probate lawyer.
Apart from very specific situations, there are general duties of a probate lawyer such as:
- Secure the assets and estates of the deceased
- Settle out any income tax issues
- Handle life insurance proceeds and payments
- Settle any debt or loan
- Prepare and report all documents required by the probate court
- Manage the checkbook and checking account
- Resolve any issues with the estate and make final disbursement to beneficiaries
Is a probate lawyer the same as an estate planning lawyer?
There is a distinction between an estate attorney and an estate planning lawyer. Even though probate lawyers at times function as estate attorneys, the practice can differ between them. Generally speaking, a probate lawyer is strictly involved after a person is deceased and the work of their posthumous estate distribution is to be done. Meanwhile, an estate planning lawyer can be hired by anyone at any time for the sake of guidance, advice, and assistance regarding their assets. Usually hired to work out how to establish a trust, a will, or other such relevant documents regarding a person’s estate.
Their roles also depend on how the process plays out after their client is deceased. As mentioned above, it can differ from whether or not the client wrote a will before they passed. In some cases, relatives can sue and claim what they think they are entitled to. It all comes down to how the intestacy laws are followed around in the state.
What is a probate lawyer fee?
A probate lawyer is an attorney doing their job just like any other lawyer. Their fee and charges can vary from their experiences, accomplishments, or even affiliations with a law firm. A relatively newer person in the field might not charge the same probate lawyer fee as someone who has been working in the field for a while.
Regardless, there are different ways that they can use to charge their clients:
- Hourly rates, based on how many hours they work for you
- Flat fees, one-time payment
- A percentage of the estate’s value they work with
If you are wondering how to determine which option to choose, there is no secret answer to this. Even though the flat fee option seems more appealing than the others as a client, the one-time fees can be expensive too. However, if the estate and assets you are working with are of high value, the percentage share option might be more of a problem for you than the others. Consequently, many times the lawyers have their own preference, so if there is someone particular you want for your job, you might have to go along with whatever their payment plan is.
Who assigns and changes a probate lawyer?
Not everyone knows this, but you do not necessarily require a probate lawyer when the winding-up process of an estate is taking place. It is preferred to have professional help to keep things smooth but it is not a mandatory requirement as long as things work themselves out. There are some questions you can ask yourself to identify whether or not you need a probate lawyer, such as:
- What is your state’s probate process like?
- How large is the estate in the process?
- Do all parties concerned in the matter work well without any professional help?
- What type of property is involved in the probate process?
- Can the process be carried without professional help?
The above questions can help you decide whether or not you need a probate lawyer. Usually, the beneficiaries, relatives of the deceased hire the probate lawyer to carry out the entire process. And the same people can change or challenge a probate lawyer if they do not feel the process is being carried out fairly too.
Regardless, the state does not need to interfere in cases that resolve themselves. But since it is a problem that occurs, there are rules, laws, and professionals such as probate lawyers to help people out in case they need assistance.
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