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When Should You Hire a Probate Attorney?

January 24, 2023
Probate

If probate is needed, the process usually begins soon after a loved one passes away. The probate process can be long, stressful, and expensive. Some family members are able to manage it on their own without an attorney, but it is typically a much too involved and time consuming a process for a loved one to take it on. It can be especially overwhelming when coupled with the grief of losing a loved one.

Role of a Probate Attorney

More often than not, it makes sense to hire a probate attorney to help settle an estate. Once engaged, a probate attorney may help find the executor if necessary and also help the beneficiaries of an estate through the probate process. The typical services offered by a probate attorney include finding and inventorying the estate assets, valuating the assets, understanding and paying debts of the estate, distributing the assets, and accounting, among other responsibilities.

What are the Probate Fees?

Simply put, probate fees vary on a case by case basis. There are filing fees paid to the probate court and attorney fees depend on state law but can be hourly or determined by a percentage of the estate value. Sometimes the process may be straight forward, but typically, there are hiccups which an attorney will work through to resolve.

Determining the Next Steps…

After the death of a loved one, if an estate plan exists, the plan will determine the next steps. If there is a will (and also if there is no will), probate will often be necessary. Unless the decedent has a funded trust and/or beneficiaries named on all accounts, some level of probate administration will likely need to happen.

Typically, a probate attorney will help to get the executor appointed by the probate court and then assist the executor and beneficiaries in the following:

  • Collect life insurance policy proceeds
  • Determine and paying inheritance, estate and income taxes. Often this includes preparing the tax returns and/or working with the CPA
  • Identifying all estate assets
  • Opening and managing the Estate checking account
  • Obtaining appraisals for assets as necessary such as real estate, jewelry, art, etc.
  • Making distribution to beneficiaries
  • Paying debts and final bills
  • Preparing and filing all Court documents
  • Retitling all the various assets

Additionally, if there is a trust involved, a probate attorney may also be hired to help administer the trust after death. If the decedent did not fund the trust, meaning; the decedent did not title all the assets in the trust or have transfer or pay on death designations to the trust, assets still titled in the decedent’s name individually will need to go through probate. Usually when this happens, the will directs everything to go to the trust. At that point, the trust will dictate how the distributions are to go or whether assets are to stay in trust.

Why Hire a Probate Attorney?

Probate can be a confusing and often frustrating process. Probate attorneys can offer support and guidance to help simplify complicated tasks and offer guidance throughout the process. The more experienced the attorney, the more efficient and less stressful the probate process will be. While any attorney may be able to practice probate law, an attorney without experience in the nuances of estate law, may take more time which may cause delays and higher fees due to inexperience. Also, every judge and county has different preferences, so knowing how the different courts operate can help make the process go more smoothly.

An attorney cannot always determine how long the probate matter may take. It often depends on how easy it is to locate and value the assets, and also locate the beneficiaries. Unanticipated delays can happen as well. Disputes between beneficiaries will likely greatly impede the process and could end up in litigation.

Also, if the decedent died without a will, the assets will be divided according to state law which may upset various family members. An attorney may be able to offer support and suggestions if family members agree.

Finally, regardless of whether there is a will or not, even where the estate is not complex, it often makes sense to hire a neutral probate attorney to guide the process and ensure that the estate plan and state law are followed.

For further questions or clarification, please contact KJK Estate, Wealth & Succession Planning Attorney Susan Friedman (SLF@kjk.com; 216.736.7272).

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