Many people have never heard of probate until they lose a close family member. Probate is the legal process for settling an estate after a person’s death. The process is usually overseen by a local probate office that will use state, county and city laws to determine how the estate settlement should proceed.
If you’re the executor or a benefactor of a will you might be wondering how to navigate the probate process so that everything is done correctly. When that’s what you’re thinking it may be time to hire a probate attorney.
What Does a Probate Attorney Do?
A probate attorney specializes in estate settlement in a certain state. They know the probate process and laws as well as the court system where everything happens. All this knowledge makes them a very valuable resource when you’re dealing with a lot after a death.
A probate attorney can handle your entire estate settlement or just a small portion of it. They can also act as consultants while the executor manages the probate process. The choice is up to the family and executor of the will.
Is Probate Necessary?
In some cases, the probate process isn’t actually necessary or required by state law. It’s possible to practice probate avoidance if the deceased made arrangements in advance. For example, assets can be transferred without the oversight of a probate court if:
- Benefactors are named.
- Any assets that are in a living trust.
- It’s considered survivorship community property.
- The assets are in a joint tenancy.
Your situation may also qualify for a “summary probate.” When the estate is small a summary probate allows you to transfer assets with just a sworn affidavit rather than a court proceeding.
How Much Does It Cost to Hire a Probate Attorney?
This is sometimes a hard question to answer because there are a number of factors involved. The state where everything is being settled plays a major role. The pay structure also makes a huge difference in the amount that’s paid and whether or not the state has standardized attorney costs.
When the costs are standardized they are capped by the state and based on the value of the estate. But even if there are statutes determining the probate attorney fees they can still charge “extraordinary” fees in some circumstances. These fees are generally charged when the probate attorney handles additional responsibilities like filing estate taxes and facilitating the sale of property. Extraordinary fees can be higher than the standardized fees, but they still have to be deemed reasonable by the probate court.
The three common payment structures are:
Hourly Rate – The attorney will bill by the hour, usually at $150+ an hour. This is a little risky if you don’t accurately estimate the number of hours needed to settle the estate.
Fixed Flat Rate – Some attorneys will charge a flat rate for performing a very specific service. The cost can range from $250 and go up into the thousands. Just be careful of extra costs for anything outside of the agreed scope of work.
Percentage of the Estate Value – This structure needs to be carefully reviewed to make sure it won’t end up costing a lot more than the other options.
No matter what payment structure or fees you agree to, they should be paid by the estate. This will help alleviate the financial burden that comes after a loved one passes.
Should You Hire a Probate Attorney?
We’ve come back around to the original question. Having professional guidance during the probate process always helps, but it isn’t always necessary.
You may want to consider hiring a probate attorney if:
- The estate is large.
- There are unique items in the estate.
- Assets of the estate are in multiple states.
- Benefactors are questioning or contesting the will.
- Commercial real estate or a business is involved.
If none of those things are true in your case, count yourself lucky. You might be able to get through the probate process without hiring an attorney. Going it alone is also easier if your loved one was very organized and spelled everything out clearly in their will.
However, in some states probate is required. If that’s the case, see if your state follows the Uniform Probate Code. The code helps to standardize the process and makes it a little easier to handle without legal help.
The experts at Direct Cremate can help your family get through the probate process by offering low-stress cremation services. Our team will handle the streamlined cremation process so you can put more of your attention toward settling the estate.