Finding a Probate Attorney
Probate is a state-specific legal process which settles a decedent's personal and financial affairs. It may require filing numerous documents, communicating with beneficiaries and creditors, and even appearing before a probate court. That is why it is important to hire an attorney who is familiar with applicable state law requirements and has broad experience dealing with probate procedures.
Personal representatives for estates, also known as executors or administrators, should consider a few guidelines when the time comes to hire a probate attorney. First, it is important to find an attorney with expert knowledge in the areas of trusts and estates and someone who is familiar with federal and state tax codes.
In addition, it is advisable to find someone who has an established history of providing probate services. Most of the time, someone with this kind of experience can make the probate process move faster than it otherwise would. The experienced attorney will know the judges who deal with probate issues in every county, and those relationships often make for a speedier process.
In addition, an attorney with a firm grasp of the tax code will make decisions that won't shrink the estate's assets before they get dispersed. It's also smart to find a lawyer who is skilled at communicating with family members, all of whom may have conflicting interests in the disposition of an estate.
Knowledge of Trusts and Estates
Finding a lawyer who is licensed to practice law in one's state is not enough when it comes to completing the probate process. Probate is a special area of law. Therefore, personal representatives for estates should consider hiring a lawyer who has specific experience with trusts and estates and all their legal implications.
Many parties, from loved ones and other beneficiaries to creditors, potentially have a say in what happens to the assets left behind by a decedent. While applicable state laws will dictate how these issues are resolved, having a lawyer who is prepared to handle any circumstance or dispute that may arise is very important.
Familiarity with Intestate Succession
Many decedents did not prepare wills and sometimes the wills that were left behind are subsequently deemed invalid by the probate court. In these intestate cases, state statutes known as "laws of intestate succession" dictate how estate assets will be distributed and how the decedent's affairs will be settled.
In cases of intestate estates, there is no way to ascertain the wishes of the decedent and disputes tend to arise. An attorney who is familiar with the laws of intestate succession can help inheritors navigate these complex waters.
Attorneys who are familiar with the laws of intestate succession can also help guarantee that once all the debts and taxes are paid, existing heirs are identified and receive the share of assets due them under state law. Otherwise, those assets generally revert to the state.
Debt Resolution Experience
However, will or no will, creditors still expect to be paid and someone (e.g., the personal representative) is responsible for making this happen. If the decedent did not prepare a will, there is a good chance he or she also did not make the person whom the court appointed personal representative aware of all his or her financial obligations.
An experienced probate lawyer can properly notify creditors about the death and help distribute assets fairly among multiple creditors. If the decedent did not leave enough money behind to cover every debt, a probate lawyer can help with debt negotiation.
Ability to Provide Tax Guidance
Regardless of the size of an estate, attention must be paid to taxes. Personal representatives do not necessarily have the knowledge or experience needed to resolve outstanding tax issues. So, it is helpful to find a lawyer who can ensure that the estate files any final state and federal income tax returns.
An experienced probate lawyer can also provide guidance on whether the estate is subject to estate taxes and/or beneficiaries to inheritance taxes.
Ability to Communicate with Beneficiaries
Often personal representatives are also beneficiaries. They may feel awkward discussing financial issues and making decisions that affect other beneficiaries who are also their loved ones. They have to find a way to handle any awkwardness and still carry out their responsibilities.
That is why it is a good idea to find a probate attorney who can objectively deal with all beneficiaries' concerns. Knowledgeable attorneys, while exclusively safeguarding the estate's interests, can often better discuss potentially delicate matters (e.g., the decedent's decision to leave property to one beneficiary versus another) with interested persons. They can help assure everyone involved that the decedent's last wishes are being carried out fairly and competently. The involvement of such a probate attorney may also help avoid or minimize legal disputes that can drain estate assets.
Lastly, when looking for a probate lawyer, personal representatives should consider any other factors that are specific to the estate. While in some jurisdictions, the hiring of a probate attorney is mandatory (for example, in Florida), in almost all cases, it is definitely advisable.