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Probate is the legal process that distributes the estate of a person after they die. During this process, the decedent’s estate is used to pay off any debts they still owe to creditors and then distributed to the decedent’s beneficiaries and heirs named in the will. In the event the decedent did not designate beneficiaries, the property is passed on to heirs in accordance with intestate laws.
During the standard probate process, the following occurs:
1. Someone must be appointed to handle the administration of the estate. In cases where the deceased memorialized their final wishes, the person who administers the estate is usually named in the document as having power of attorney. If the deceased did not leave a will, or left one that is invalid, the probate court will usually appoint the surviving spouse or another family member to handle the administration of the estate.
2. A judge uses standards set by the state – which designate things like witness rules and types of signatories – to decide whether or not a will is valid. In the event the last will and estate is invalid, the decedent’s estate is administered by an appointed representative and intestate laws dictate how to distribute the decedent’s finances and real estate.
3. Once a judge determines the document is valid, the decedent’s property must be identified, inventoried, and appraised before their assets can be sold or distributed.
4. Any debts or taxes still owed by the deceased are paid before the remaining trust and estate is divided among the decedent’s designated beneficiaries and heirs. Sometimes there aren’t enough assets to pay off legitimate debts, so the judge has to decide which debts get paid first. Unfortunately, this means if the initial investigation reveals there is not enough money in the estate to pay debts and taxes, the beneficiaries and heirs may inherit nothing. However, as long as the assets are properly probated, creditors only have three to six months to collect from the estate.
5. When a valid document exists, the executor of the trust fund distributes the decedent’s assets in accordance with their wishes. When the deceased did not leave a a valid final document, the property that makes up the decedent’s estate is distributed to their heirs as specified under intestate laws. This generally means that property is passed on to the children or other immediate family members.
Probate can take awhile (typically six to nine months) if it requires a lot of paperwork and appearances before a judge. Because the process can be lengthy and complicated, you may want to hire an experienced attorney to represent your interests. It is helpful to hire an attorney for legal services because various unpredictable events may come into play, especially when a person did not provide details on how they want their estate to be distributed. In order to ensure one’s interests are secure during probate, it would be wise to hire a top rated lawyer with a lot of experience with the probate process. These attorneys typically specialize in elder law.
Since the probate process can be lengthy and complicated, you’ll probably want legal advice from an experienced professional who is familiar with state laws and how the local probate proceedings work. To determine whether or not you should hire a lawyer, ask yourself the following questions:
1. Can the decedent’s assets be transferred without probate? Typically, this depends on whether the decedent did any probate-avoidance planning. In an ideal situation, all assets can be transferred without probate litigation. Some common assets that do not go through probate include: (1) real estate, bank accounts, and other assets held in joint tenancy or community property with right of survivor ship; (2) assets held in a living trust; and (3) retirement and life insurance accounts with a named beneficiary.
2. Does the estate contain only common assets? Common assets include bank or brokerage accounts, houses, household goods, and vehicles. Non-common assets include revocable or irrevocable trusts, businesses, commercial real estate, or any other assets requiring special ongoing handling. You’ll probably want to set up a consultation with probate experts if you have to manage any of these more difficult assets.
3. Do you owe either state or federal tax on the property you inherit? Under current nationwide laws, it is unlikely you’ll owe federal estate tax or state estate tax on the inheritance. In general, only estates valued at $1 million or larger are subject to taxes. If you need to file an estate tax return with the IRS or state taxing authority, then you’ll certainly want expert legal and tax advice.
The benefits of hiring legal counsel are immeasurable when protecting you and your family’s rights. Whether or not the estate is administered in a probate proceeding, an expert probate attorney can help in many ways that a less experienced attorney cannot. For one thing, they can file the decedent’s will with the district court as well as prepare the necessary forms to administer the estate. They can also help with the administration of the estate. Additionally, they can help if any legal complications arise in probate. Thus, it is important to search for an experienced attorney in your area to better understand all ways he or she can help you, especially if the details of your situation are complicated.
If you are looking for a law firm you can trust, you should first try to get recommendations from friends and family. Another smart approach would be to read reviews and look at ratings on legal websites and local online directories. Honest reviews can provide valuable information in your attempt to find the right legal professional, as the best way to gauge credibility is often through the eyes of previous clients.
If you are wondering how much legal representation costs, the answer is, it depends on the fee structure. In many instances, a probate attorney will charge an hourly rate, which can vary based on how experienced the lawyer is and where they are located.
It is also common for lawyers to charge a flat fee, which is essentially just a fixed fee for their services regardless of usage. With this fee structure, you don’t have to worry as much about how they are spending their time.
Other lawyers are paid a percentage of the money received at the conclusion of your probate case. The cost of paying lawyers and filing fees comes out of the estate property; this money would otherwise go to your inheritance from the deceased person if they were not covering fees. Under this type of rate agreement, a top rated lawyer takes no payment up front, instead working toward the goals you have for the case together and then taking the agreed percentage from the money or assets you receive.
If you are about to begin the probate process, it is recommended that you schedule some free consultations with experienced attorneys who specialize in probate law. An expert lawyer can offer assistance by answering questions, explaining the law and representing you in legal proceedings. Take the first step now and contact a probate attorney near you for a free consultation to discuss the specifics of your case.