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How to Choose the Right Probate Lawyer: The Ultimate Guide
By Beau V. Taylor, Esq. || Beau Taylor Law, PLLC
Summary: This article discusses what to look for and how to choose a probate lawyer.
Choosing a probate lawyer is an important decision to be made by the personal representative of a deceased person’s estate. The probate lawyer has the duty to advise the personal representative of the estate on how to settle the deceased person’s affairs. A probate lawyer can be hired by the executor, beneficiary, or administrator (collectively “personal representative”) of the deceased person’s estate. Finally, a probate lawyer has the responsibility of advising the personal representative through the entire probate process from start to finish.
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What Does a Probate Lawyer Do?
A probate lawyer will advise and assist the personal representative with:
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Securing both probate and non-probate assets of the decedent.
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Obtain the value and conduct appraisals for all of the decedent’s assets.
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Drafting, preparing, and filing all probate documents in a timely and efficient manner.
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Securing and collecting life insurance proceeds if there are any.
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Advising and executing final payments of bills of the decedent.
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Handling a checking account for the purpose of estate taxes and inheritance taxes.
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Advising and assisting in distributions of IRA accounts, Pension accounts, and other accounts.
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Settling disputes among personal representatives with respect to the decedent’s estate.
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Appearing and requesting court permissions for various matters as required by New York Probate laws.
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Transferring the deeds of any properties into the beneficiaries’ names if the properties are not being sold.
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Assisting and advising in the sale of any real property included in the estate.
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Distribution of the remainder of the estate after all bills and expenses are paid.
The probate process will differ if the decedent died with or without a will. The probate lawyer you hire must have experience and education with both processes. The probate lawyer can also advise the personal representative or beneficiary of the estate on other legal matters that may arise in relation to the probate process of the estate.
Do I Need a Probate Lawyer if I Want to Contest a Will?
If you want to contest a will, meaning you believe the will offered for probate is invalid, you will need to hire a probate lawyer who will challenge the will. Some of the reasons a will may be challenged are:
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The will was executed under duress. The probate lawyer will have to prove the will was only signed because the decedent was under extreme pressure or influence by another person to sign the will.
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The will lacked the proper steps when it was executed deeming it invalid. This will require the probate lawyer to understand the formalities of a will, and have the ability to prove these steps were not taken when the will was executed.
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The will was signed under undue influence. This occurs when you believe the person who signed the will was in a weakened mental state and was influenced by another person who was in a position of power over the person signing the will. This is a difficult challenge for the probate lawyer to prove.
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The will was executed under fraud. Another difficult task for a probate lawyer is proving fraud. Fraud takes place when the person who signed the will was lied to by another person and the estate in the will is not being distributed along with the decedent’s wishes.
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The will was signed when the decedent lacked mental capacity. The person signing the will has to have known what they were signing. A good probate lawyer will be able to prove the person was not in their right mind when they signed the will. It is the probate lawyer’s responsibility to obtain medical records and other proof that would indicate the decedent was not in his or her right mind when the will was executed.
All in all a probate lawyer has to be well versed with a strong understanding of estate litigation. This includes the probate lawyer understanding the laws of New York.
What Steps Will a Probate Lawyer Take During the Probate Process?
After you have found the right probate lawyer, it is good to have an understanding of how the probate process in New York works.
Step 1. The first step the probate lawyer will take in probating the will is the collection, inventory, and appraisal of all assets subject to the probate process. This includes the entire estate of the decedent. This also includes any debts, outstanding bills, or obligations the decedent has at the time of his or her death. The probate lawyer must file this inventory with the court.
If the estate consists of bank accounts, investment funds, retirement accounts, life insurance, etc. the probate lawyer will have to file these account numbers with the court. This also goes for any real properties (homes, land, condos, co-ops, etc.).
Additionally, in come cases, the probate lawyer will have to set up an account for the payment of any estate expenses such as estate taxes, appraisal fees, probate lawyer fees, etc. A good probate lawyer will try not to liquidate any assets that are not already cash for these payments. It is good practice for a probate lawyer to keep the value of the estate in tact throughout the probate process.
Step 2. The probate lawyer will usually handle the payments of the estate expenses, however it is not uncommon for the personal representative to do so. In many cases the personal representative has a perquisite knowledge of the decedent’s affairs and can easily handle the payment and processing of any estate expenses, leaving the probate lawyer to focus on the probate process of the rest of the estate.
It is important for the probate lawyer to set aside an allowance for the beneficiaries prior to the handling of any estate expenses. After this allowance the order of importance of estate expenses being paid is: cost of administration, funeral expenses, debts and taxes, and all other claims. The probate lawyer will be responsible for handling any creditor claims which may be made on the decedent’s estate.
If the personal representative is handling the payment of the estate expenses and runs into any problems, the probate lawyer can step in to defend or negotiate any claims made by creditors or other parties against the estate. The probate lawyer may require an additional retainer if he or she is asked to perform outside of the scope of the probate process. See probate lawyer fees below.
Step 3. The probate lawyer transfers any property, accounts, or other parts of the estate into the proper beneficiaries’ ownership. It is important of the probate lawyer to understand the process of deed transfers, bank account transfers, investment account transfers, and any other legal transfers of the estate to the proper beneficiaries.
Finally, the probate lawyer will complete a final settlement or accounting of all the probate lawyer’s and personal representative’s dealings on behalf of the estate. Once the probate lawyer obtains the judge’s final approval, the personal representative and probate lawyer no longer have any responsibilities with respect to the decedent’s estate and the professional relationship is over.
What Will a Probate Lawyer Charge?
A probate lawyer can charge fees for the probate process in most likely, one of three different ways:
Hourly fee: Some probate lawyers will charge an hourly fee for the entire probate process. This can become costly, as the hours can add up. Be sure to find out how much the probate lawyer is charging per hour, if there is a minimum charge for emails, phone calls, faxes, etc, and if there is a minimum amount needed to retain the lawyer. For example, some probate lawyers will require a certain amount of money paid upfront in order to retain the firm. Be sure you read the retainer fully before entering into any agreement with a probate lawyer.
Flat fee: Some probate lawyers charge a flat fee. This is usually the case if the probate of the estate looks like it will be a simple straight forward process. The advantages to this type of billing is that you can feel free to communicate with the probate lawyer without feeling as if the clock is running costing you more money, however, be on the lookout for additional fees. It is very common for a probate lawyer to add in hourly fees if the probate case involves any other work for the probate lawyer outside of the scope of the discussed matter. Be sure to ask the probate lawyer about what would fall outside of the probate at issue.
Percentage: Perhaps the most common way for a probate lawyer to charge for services when handling a probate is by a percentage of the estate. This is typically comparable to what commission the executor of the will would receive. If the probate lawyer charges more than that, it would be wise to consider another law firm. This can also be the easiest and safest way to hire a probate lawyer because he or she won’t get paid until the probate proceeding is finished. This will ensure the probate lawyer is working fast and efficiently.
Where Should I Look For a Probate Lawyer?
The best way to find a probate lawyer is to have one referred to you. It is a better idea to research a probate lawyer yourself. If you don’t know anyone who knows a good probate lawyer, or you want to find one yourself, Beau Taylor Law is a small, personable, and very reasonable law firm located in New York that focuses on probate. Click here for a free consultation and find out if Beau Taylor Law is the right probate lawyer for you.