Probate is a legal process whereby a court supervises the distribution of the estate of a deceased person. This is usually done with the help of an attorney, but it can also be conducted by someone who has been appointed as an executor or administrator.
When someone passes away, their estate needs to be settled. This includes making sure that their debts are paid off, their property is transferred to the rightful heirs, and their financial affairs are taken care of.
A probate lawyer is needed to handle these matters. However, there are times when you don't need to hire a probate attorney. This article will explain how probate works, when hiring a probate attorney is necessary, and everything you need to know before hiring one.
What is Probate?
Probate is the legal process by which an individual's assets and liabilities are distributed after their death. It is also known as administration. The term "probate" comes from the Latin word probate, meaning "to prove". In other words, it means proving whether someone has died.
The person who dies must have a will. If no will exists, the state law determines how the deceased's assets should be distributed.
If the decedent had any real estate, it goes through a separate procedure called "real estate administration." Real estate administrators are usually appointed by the court to manage the real estate until all claims against it are resolved.
In some states, if the decedent did not own any real estate, then they may have left instructions in a trust document regarding how their assets were to be distributed. These trusts are called "intestate" because they do not require a will.
In most cases, the executor administers the estate. They handle all the paperwork involved with settling the estate, such as paying bills, distributing the assets, and filing tax returns.
How Does Probate Work?
Before the decedent dies, they can appoint someone to serve as the executor. The executor files a petition for probate in the county where the decedent lived.
This petition asks the court to grant letters of testamentary to the executor. Letters of administration give the executor authority over the decedent's estate.
Once the executor receives the letters of administration, they begin administering the estate. When this happens, the executor takes charge of all the decedent's personal belongings and pays all of the decedent's creditors.
They prepare a final accounting of the estate. Then, the executor distributes the assets among the beneficiaries named in the decedent's will.
An executor does not receive any compensation for serving as the administrator of an estate. Instead, the executor serves at the pleasure of the decedent.
Probate Attorney: Do I Need One?
The first thing to consider when determining whether or not you need a probate attorney is if your loved one passed away. If they did pass away, then it's likely that you'll have to go through probate.
There are many reasons why you may want to hire a probate lawyer. For example, you may need to apply for letters of administration with the court. If this happens, then you’ll need to find a probate attorney.
If this happens, then you're going to need to file paperwork with the court. To do this, you'll need to make sure that you get all of the documents you need to complete the process. The forms that you'll need include the death certificate, the obituary notice, and the funeral director's bill.
You'll also need to provide proof that you've been appointed as the executor of the deceased person's estate. This can be done by filing a petition with the court. Once you've filed this document, you'll need to serve copies to each heir.
You should also keep in mind that you may need to file a claim against the estate. This means that you'll need to file a lawsuit against the deceased person's estate so that you can collect any money owed to you from them.
In addition to all of this, you'll also need to deal with the deceased person's final wishes. These might include wills, trusts, life insurance policies, retirement accounts, etc.
Once you know what kind of things you'll need to take care of after your loved one has died, you'll be able to determine whether or not you need to hire a probate attorney.
The Duties of a Probate Attorney
Probate attorneys have many duties. They must ensure that all legal requirements are met before the deceased's assets can be distributed.
They also keep track of any changes in the law so that they can inform other lawyers about them. For example, if a new rule or regulation comes into effect, they will notify other lawyers who may not know it.
In addition, they must ensure that the deceased's wishes are followed. If the deceased did not leave instructions on how their money should be spent after death, then the executor has to follow those instructions.
If the deceased left instructions for how they wanted to be buried, then this must be carried out as well.
An executor may want to sell the deceased's house or car in some cases. They must find out whether this is allowed by law.
Another duty of a probate attorney is to help settle the deceased's financial affairs. They must determine what assets belong to the deceased and which ones belong to others.
They must also decide what debts should be paid from the deceased's estate. These debts include taxes, medical bills, funeral costs, and other expenses in some cases.
Finally, a probate attorney must oversee the distribution of the deceased's remaining assets.
Why Hire the Services of a Probate Attorney?
There are several benefits to having a probate attorney handle your deceased relative's affairs. First, you won't have to worry about completing the tasks yourself.
This makes the entire process much easier. Second, you'll be protected by the fact that a probate attorney knows exactly what they're doing.
Third, a probate attorney will be able to save you time and effort. They will be able to tell you where you can cut corners and where you cannot.
Fourth, a probate attorney can help you avoid costly mistakes. An experienced probate attorney will know how to protect your interests throughout the entire process.
Fifth, a probate attorney will likely charge less than you would pay a private attorney. This is because most probate attorneys work on a contingency basis.
This means that they only get paid if you win the case. They often offer lower rates to clients who are more likely to succeed.
Sixth, you'll probably receive better service from a probate attorney. Since they already specialize in probate law, they'll be familiar with the ins and outs of the process.
Finally, a probate attorney works under the supervision of a judge. As such, they are required to follow certain rules and regulations. As a result, they’ll be able to give you better advice and guidance.
These rules and regulations are designed to protect the rights of both parties involved in the case. As such, they are usually very strict.
For example, the executor must file all documents within a specific period. Failure to do so could lead to penalties being imposed.
The same goes for the beneficiaries. They, too, must submit paperwork within a specified amount of time. If they fail to do so, they could lose their right to claim the deceased's assets.
What Should I Look For When Choosing a Probate Lawyer?
You should look for a probate attorney who specializes in probate law. This way, you'll be dealing with someone who understands the process and has experience handling similar cases.
Additionally, you should ask them questions regarding their qualifications. Ask them if they've handled many similar cases before.
Ask them about their fees and payment options. Make sure that they provide you with a written estimate of their services.
If possible, contact a few different lawyers to determine which one best suits your needs.
How Much Does It Cost to Hire a Probate Attorney?
To make an informed decision as to whether or not to use a probate attorney, you first need to understand the cost associated with using one.
Most people assume that hiring a probate attorney costs thousands of dollars. In reality, it doesn't.
Probate attorneys typically charge between $500-$1,000 per hour. This means that you can expect to spend anywhere from $5,000 - $10,000 on an average case.
However, this number varies depending on the complexity of the case. Additionally, some probate attorneys may charge extra for things like filing fees and court appearances.
The Probate Process
The first thing to do when someone dies is to contact an attorney who can help with the probate process. The probate process involves the following steps:
1) Obtain a death certificate from the county clerk's office.
2) Contact the deceased person's bank or credit union for information about any outstanding loans.
3) Notify all creditors of the death and ask them to stop collection efforts.
4) Notify the Social Security Administration.
5) File a federal tax return for the deceased person.
6) Notify the state department of revenue if the deceased person had income taxes due.
7) Notify the state Department of Health Services if the deceased person was eligible for Medicaid benefits.
8) Notify the state insurance commissioner if the deceased person had life insurance policies.
9) Notify the local health department if the deceased person had medical insurance coverage.
10) Notify the Internal Revenue Service if the deceased person owed back taxes.
11) Notify the IRS if the deceased person had filed a gift tax return.
12) Notify the IRS of any other taxes due.
13) Notify the IRS that the deceased person has died.
14) Notify the IRS regarding any refunds due.
15) Notify the IRS about any penalties or interest due.
16) Notify the IRS whether the deceased person made charitable contributions.
17) Notify the IRS to determine if the deceased person claimed any deductions on their tax returns.
18) Notify the IRS as to whether the deceased person received any social security benefits.
19) Notify the IRS in writing that the deceased person has passed away.
20) Notify the IRS within 30 days of the date of death that the deceased person has been buried.
21) Notify the IRS after 30 days of the deceased person’s burial date that the deceased person has not yet been cremated.
22) Notify the IRS by filing Form 709.
23) pay all funeral expenses.
24) Make arrangements for the disposition of the deceased person's belongings.
25) Arrange for the transfer of the deceased person's assets to the executor or administrator of the deceased person's estate.
26) Provide copies of the death certificate and obituary notice to the executor or the administrator.
27) Prepare a written inventory of the deceased person's possessions.
28) Give the executor or administrator power of attorney over the deceased person's real property.
29) Collect any unpaid bills.
30) Pay any outstanding bills.
31) File the final report with the court.
32) Pay any remaining debts.
33) Close the deceased person's estate file.
Probate and Estate Planning
If you have questions about probate, you may want to talk to a lawyer who specializes in this area. If your family member did not leave instructions about how they wanted their money distributed, then the law determines what happens to it.
In some states, a person must wait two years before they can make gifts to others without paying taxes on those gifts. The same applies to inheritances.
When someone dies, the government automatically collects specific amounts from the deceased person's bank accounts and checks. These include Social Security payments, Medicare payments, and unemployment compensation. If the deceased person didn't pay into these programs, the government pays the funds to the beneficiaries.
If you're planning to get married, you should talk to an experienced divorce lawyer. The laws governing marriage vary from state to state. In most cases, you'll need to obtain a prenuptial agreement before getting hitched.
The following are some of the things that you should know about probate:
1) It takes time and effort to complete.
2) There are many steps involved.
3) It requires legal expertise.
4) It costs money.
5) It may take several months to complete.
6) Some people think it's unnecessary.
7) It's often done by the county clerk.
8) It's usually handled by the executor of the deceased person's will.
9) It's required if the deceased person died intestate.
10) It's required if there were no living relatives.
11) It's required if a relative claims the deceased person's estate under the "will contest" statute.
12) It's required if someone challenges the validity of the will.
13) It's required if anyone disputes the validity of the will and files suit to set aside the will.
14) It's required if one of the parties to the will contest the will.
15) It's required if either party to the will contests the will’s validity or seeks to set aside the will as being procured through fraud or undue influence.
16) It's required if more than one will exists.
17) It's required if any beneficiary under the will contest the will.
18) It's required if both spouses die at the same time.
19) It's required if neither spouse has a will.
20) It's required if no will was made.
Probate attorneys are needed to handle the above-mentioned tasks. If you have questions about how to go about this, it is best to consult with a probate attorney.
Hiring a probate attorney is also essential because they know what documents should be prepared and where to send them. They also know which forms to fill out and which ones to leave blank. In addition, they know what documents to give to whom and when.