FAQs: PROBATE

WHAT IS PROBATE?

 

Probate is the court process of settling an estate. A petition is filed in the probate court to initiate the process. A Will is admitted, if one exists. Creditors are then served by publication; and actual notice is given, if the creditors are known or reasonably ascertainable. An inventory is prepared and filed listing all probate assets. Income and estate taxes are then paid, if required. Finally, distribution is made to the beneficiaries.

 

 

WHY DOES PROBATE TAKE SO LONG?

 

The average time to probate an estate is less than one year. Typically, it takes a month to open an estate and three more months for the publication period to run for creditors. If a petition to determine homestead or a petition to determine heirs needs to be filed, the time will be extended. This could be several more months. If there are issues regarding creditor’s claims or disputes among beneficiaries, the time to probate the estate could be increased. Filing an estate tax return will also increase the time to settle an estate, as an estate tax closing letter is required.

 

 

WHAT DOES PROBATE COST?

 

The legal fees to probate an estate vary widely depending on the attorney hired and the method he or she uses to calculate the fee. Some attorneys will charge by the hour; while others will charge a flat fee or a percentage of the gross estate. Not all estates lend themselves to be billed the same way. A small estate will most likely be billed by the hour or on a flat fee basis. This assumes that no extraordinary problems arise. A large estate will be billed on a percentage or flat fee. This is because an hourly fee does not take into account either the liability of a large estate or the complexity that typically comes with a large estate. In addition to attorney’s fees, there are filing fees, publication charges, appraisal, accounting, and other costs associated with settling a particular estate.

 

 

HOW DO I CHOOSE A PROBATE LAWYER?

 

There are several ways to determine the right probate lawyer for an estate. Years of experience are very important as well as the amount of probate work the attorney does in his or her practice. Whether or not the attorney is Board Certified in Wills, Trust and Estates or Elder Law is another criteria for choosing a probate lawyer. If the estate is going to require complex litigation, there are certain probate lawyers who concentrate their practices on litigation of estates. There are organizations that rate attorneys such as Martindale-Hubbel, Avvo and Super Lawyer Magazine. Of the three mentioned, Martindale-Hubbel is the most respected service. An AV rating means “preeminent,” which is what the client should be seeking. Lastly, a potential client should talk to the lawyer to see if personalities are compatible. The client can expect a free brief telephone consultation and expect to pay for an in office consultation for an hour or more of an attorney’s time.

 

 

WHAT IF A PERSON DOESN'T LIKE HIS/HER LAWYER?

 

A client always has the right to change lawyers, if he or she does not feel comfortable with his or her present lawyer. However, the attorney is entitled to be paid for his or her time. Changing lawyers may cost more in the end; so a client should investigate the total cost before making a decision to change lawyers. Also, it is advised that the client should have an open conversation with the lawyer first in an effort to work out any differences.

 

 

IF A PERSON IS BENEFICIARY OF AN ESTATE, CAN HE/SHE HIRE HIS/HER OWN LAWYER?

 

Any person involved in a probate matter, whether as a beneficiary or a creditor, may hire his or her own lawyer. That lawyer will file a notice of appearance on behalf of the  client and be entitled to receive all pleadings filed by the attorney for the estate. The attorney for the beneficiary will then be able to protect the client’s interests in the estate. If the attorney’s actions result in a benefit to the estate, then his or her fees may be paid from the estate’s assets. If the attorney’s actions only benefit the client’s, then his or her fees will be paid only by that client.