Calling a probate lawyer is not something someone looks forward to. In truth, these phone calls tend only to come up when families lose a loved one, and they need help getting through the process. As a result, these discussions typically happen when individuals are at their most vulnerable, have no idea who to turn to for help, or what steps they need to take next.
That is why, when you are making this call, it is critical that you ask these legal professionals the right questions. Not only will this help clear up some of your misunderstandings surrounding this probate process, but it will also help you decide whether the attorney you are talking to is the right lawyer for the job.
Before you meet with a probate attorney, it is important to understand what they do exactly and what their focus is. Better yet, if you can find an attorney that does both estate planning and probate, it can help you cover numerous aspects of the tasks you may need. This is because probate attorneys are usually responsible for handling the estate administration process after a person passes away, while an estate planning lawyer works with living clients regarding how their estate should be administered and helps them create trusts, wills, and other relevant legal documents.
Having an attorney who can handle both of these aspects can save you time and streamline this whole process for you.
In California, Probate fees paid to attorneys are set by state law. The fees are based on a percentage of the gross value of the probate estate. The gross value does not deduct for debts, mortgages, or other liabilities the estate may owe. Here is a breakdown of the probate attorney fee calculation. The fee is a sliding scale, meaning the attorneys fee reduces as the estate value increases. It is also important to remember that the executor and the attorney are paid the same amount. If the attorney is paid $10,000, the executor will also be paid $10,000.
Example: Your parents die and you and your sibling are the only two heirs of a house valued at $400,000 and has a mortgage balance of $300,000. Your sibling is the executor. The probate attorney fee would be:
$4,000 + $3,000 + $2,000 + $2,000 = $11,000.
Your sibling, as the executor, would also receive a fee of $11,000. The loan of $300,000 will be paid when the house sells.
In addition, the amount of these fees will often depend on where the lawyer practices, their experience, and other factors that they will not list on their website. These additional fees are called "Extraordinary Fees." The attorney must get the court's approval before the attorney can charge extra-ordinary fees. That is why, before you agree to hire a probate lawyer, you should clarify what type of fee arrangement they have, how much they will charge you, how they collect these payments, and other details you want to know about their costs.
Otherwise, if you do not get these questions cleared up, you can be left with unexpected expenses that you did not plan for.
Probate Courts have costs. In addition to the attorney fees and the executor fees, the court charges fees as well. Talk to your attorney and get an estimate of the court costs before you begin the probate process.
When looking to find an attorney that has extensive experience and knowledge in probate and estate planning, you typically do not want to hire an attorney who also practices criminal defense, bankruptcy, or family law. Instead, you want a legal professional who is ready to tackle probate cases similar to yours, has a record of proven results and has the time necessary to dedicate to your case.
It is often a good idea to understand what your attorney will be working on, so you have a better idea of what they will be doing for you. That is why it is recommended that when you meet with these attorneys, you ask them specifically to walk you through what you can expect in the upcoming probate process. You will want these attorneys to go over the documents that need to be filed, the length of time they expect this legal matter to continue for, and whether probate is even necessary.
Getting this answer in a way you can clearly understand is a good indication that the lawyer knows what they are doing, will be there to help you understand this whole legal process from start to finish, and is willing to help you get the results you want.
This question can also help you determine whether the firm is committed to transparency.
Although the issue of creditors may not be everyone's favorite topic to discuss, it is important that during your meeting with a probate lawyer, you figure out how these legal professionals will deal with outstanding financial obligations or debts.
Under the laws, all estate credits are generally entitled to reimbursement from the estate's proceeds. Your attorney should know the order by which creditors are to be paid and be able to draw up a plan for paying your creditors before closing the estate so that you can avoid any future liability.
A bond is designed to protect creditors and beneficiaries. Think of a bond like an insurance policy on a bad executor. Imagine the executor of your mother's estate steals the money from the probate account, refuses to pay creditors or give beneficiaries or heirs their inheritance, and runs off to Mexico to live on the beach drinking mojitos. How would the creditors or the family be compensated? The bond would pay the creditors and the family inheritances, and then go after the bad-acting mojito drinking executor.
Bonds, like insurance policies, require an annual premium. The premium must be paid before an executor can be appointed. But, look carefully at the Will. Most of the time, a Will waives or cancels the requirement for the executor to post a bond. This can be good and bad. No bond means fewer expenses for the estate to pay. But no bond also means there is no protection for a bad-acting executor.
Depending on the situation, it is not only executors that can mismanage the estate. It can also include heirs and other beneficiaries. As a result, you need to clarify that the probate lawyer knows how to take care of this problem quickly, stop this mishandling from continuing, remove these specific individuals from touching these assets, and get compensation back for the wasted finances.
When going through the probate process, you want to be prepared for everything that may come up. You and your family are already going through a lot. The last thing you want to be surprised with is unexpected issues that cause delays in the case. For these reasons, you want to make sure you work with an attorney who can tell you about potential setbacks that may impact your case and how to plan for them.