“A probate lawyer can help with several key issues all related to will and testament. He can check the will at the time it’s created for any legal technicalities to avoid any disputes later. But most importantly, he can help the survivors navigate through the complexities that may arise in estate administration of the deceased person.”
Perhaps the last thing that you would want to go through or want an estate of a deceased loved one to suffer from, is probate. Probates are lengthy, complex, and expensive legal processes that can significantly shrink the estate of a deceased person, leaving very little for the survivors. However, a probate lawyer can help you avoid as well as pass through the complex procedure of probate.
This article covers many important aspects discussing probate and the importance of hiring a probate attorney.
What is probate?
Probate is a legal process that is undertaken to evaluate the legality and authenticity of a will of a deceased person. It also involves providing administrative assistance to execute a deceased person’s will or administer the estate of a deceased person when there is no will.
If you find it difficult to understand the above definition of probate, know that probate matters are more difficult to go through. Therefore, your first strategy should be to become aware of methods and their deployment to avoid probate.
Depending on your situation and circumstances, a probate lawyer can guide you towards the best options in your case. A probate attorney can help you bypass, as well as defend your rights by enforcing the lawful will of a deceased person.
Is probate necessary?
As a matter of fact, probate is totally avoidable. It only becomes necessary when no steps are essentially taken to prevent it. Such as using estate planning tools other than a will.
Laws in some states also have a prescribed amount of value below which no estates should go through probate. This means that the estate of a deceased person can be directly settled and distributed. A probate lawyer can help you smoothly achieve this objective.
But when a state law or the value of the estate requires probate, it is totally necessary and becomes an unavoidable obligation. Under such a situation, performing any action on the deceased person’s estate that may construe as interference of probate matters, should be completely avoided.
How does a probate process work?
Probate laws vary according to each state. Some state laws have a value cap on the amount of estate left behind by a deceased person. Then, any estate below this cap might either require no probate at all or may follow a simpler method to disburse the property of the deceased person.
In other normal cases, a probate process will likely consist of the following procedures –
Situation # 1 – No will present or intestate estate.
Intestate is the term used to refer to a person dying without a will. In cases where a court declares a will to be invalid, such estate of the deceased person is also said to be intestate.
Intestate matters are generally decided by the court according to the state laws of intestacy.
Situation # 2 – Will present and specifically names a person as an executor of the will.
In such a situation, the executor must file the required documents with the local court at his earliest. Each state’s laws will prescribe the anticipated time frame during which the executor must file for the probate process.
After the submission of all the required documents, the probate process begins. The probate court usually begins with judging the validity of the will submitted by the executor.
Once the court accepts the will to be valid and a true last testament of the deceased, it assigns the executor with the legal power to execute the contents of the will.
In some states, before an executor can begin his duties, he might have to file a surety bond with the probate court.
The executor, among other functions, will carry out the following acts –
- Collect information about the spouse, heirs, relatives, etc. of the deceased person. In some cases, he might as well have to locate the heirs if no one claims to be the legal heir of the deceased person.
- Collect information about the assets and properties owned by the deceased person and evaluate their proper value.
- Pay taxes, collect bills and make subsequent payments, pay off the debtors and liabilities out of the estate of the deceased person.
- Some states may require an executor to maintain, as well as submit into the court, a proper record of the actions carried out by him.
Situation # 3 – Will present but does not specifically mention the name of the executor.
In such a case, the probate court appoints an administrator or an executor, which may be next of kin, to carry out the same actions as described in situation # 2 above.
Why appoint probate lawyer near me?
Finding probate lawyers near me means consulting an attorney who holds professional competence in your state’s probate law. Doing this becomes important for several good reasons.
For your convenience, we have categorized these reasons into primary and secondary. While there is only one primary reason to hire a probate lawyer, you will realize its importance as you read further. Just by not skipping the primary reason, most of the secondary reasons to hire a probate lawyer can be easily avoided.
Primary reason to hire a probate lawyer
1. A probate lawyer can help avoid probate altogether
Primarily, and what should be the ideal case, is to appoint a probate attorney at the time of making a will. With careful planning and much-needed assistance, a probate lawyer can help in avoiding the probate altogether.
A comprehensive discussion to understand the main reasons for anyone to avoid probate in the first instance is available later in this article.
Secondary reasons for hiring a probate lawyer
Other cases where a probate lawyer can help you and your loved ones are –
1. Undue influence
Undue influence is a situation where one person has the position to take advantage of the other person against their choice.
If the heirs of a deceased person have reasonable doubt to believe that the will was primarily constituted under undue influence, they can challenge its content. A probate lawyer can help you establish such facts and present them in court in a compelling manner.
2. Will contest
A will contest is basically when an obligation is raised against the validity of a will. A will may contain an error that needs correction for which seeking a court’s help becomes necessary. A probate lawyer can help in filing such appeals.
3. Mental incapacity
If the heirs have reasonable grounds to believe that the deceased person was lacking sound-mindedness at the time of making the will, questions may arise as to the validity of the will. A probate lawyer could help establish this fact and get the heirs their lawful share in the deceased person’s estate.
4. Breach of fiduciary duties
If the heirs doubt that an executor of the will has conducted a breach of his fiduciary duties, they may file an appeal with the court in this regard. A probate lawyer can ask the court to stop further disbursement of the deceased person’s estate and appoint another person to administer the process.
Why should you or your loved one’s avoid probate?
While probate matters might be simple in some cases, this isn’t the situation always. Reasons for which you or anyone else should avoid going through probate are –
1. Probate is unnecessarily time-consuming
Matters pending probate litigation could face delays and prolong for an unanticipated time frame. Depending on the severity of the ongoing events, probate litigation could take from a few weeks and months to even several years to settle.
Some reasons why probate could delay are –
- When there are more beneficiaries, and they live in different faraway states.
- The deceased person’s estate is in more than one state.
- Estates require filing estate tax returns which itself is a time-consuming procedure.
- Estate includes assets whose valuation procedure itself isn’t easy and simple.
- Beneficiaries have disputes in between.
- Will contest issues.
- When there exist too many wills and none of them exclusively mentions to be the last will and testament.
2. Probates are expensive
Probates can be expensive to settle, as there can be documentation charges, administrative costs, probate lawyer fees, and other expenses. These expenses will keep on recurring until the probate case is finally settled.
Probate trials are also known to shrink the size of the estate due to the costs involved in them. This way the outcome of probate may or may not be worth the effort and resources you invested.
3. Probates are public
All information revealed and shared during the proceedings of probate litigation will become a public record. This can further cause delays in the entire process. For example, a false heir or fraud creditor getting involved in the case and demanding a share in the deceased person’s estate.
Probates expose your personal wealth and what you are about to inherit. This can further create issues for you.
4. The probate court’s judgement may not turn out to be favorable
It is also possible that even after going through such a lengthy procedure, the court rules out against your expectation. If you file an appeal against such a decision of the court, it will further delay the process.
What is probate lawyer fees or how much do probate attorneys’ cost?
The fees of a probate lawyer highly depend on the type of service you are looking for.
For a simple will correction, or creating a will, a probate lawyer may bill you an hourly rate or even a flat rate.
But for pursuing complete probate litigation, probate lawyers will charge you depending on the amount of work involved. For example, a probate lawyer may bill for his services at an hourly rate. Or instead, he can also charge a fixed percentage rate from the amount of settlement you receive.
Probate lawyers near me
Since probate laws vary according to state, hiring the right probate lawyer becomes highly important. A probate lawyer should hold great knowledge of the probate law of the county where the case is under trial. As mentioned earlier, your priority should be to hire a probate lawyer to avoid probate altogether.
However, if you or your loved one’s lack of awareness has resulted in probate, you should immediately consult a probate lawyer without any further delay.
And since you are almost done reading this article, why not take advantage of our probate lawyer free consultation offer. Probate lawyers at Attorneys Real Estate Group are experts in all areas related to real estate including probate law in California.
Just a few minutes call with one of our highly experienced probate lawyer Sacramento will help evaluate your best options.
Simply, give us a call at 916-702-8443 or visit our website at Attorneysre.com. You can also get free legal consultation by filling in the form at this link. One of our attorneys will get back to you as quickly as possible and will be glad to assist you. We look forward to welcoming you soon.