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Administrative vs Litigation Probate Lawyer

Administrative vs Litigation Probate Lawyer

When a person dies and leaves a property or estate behind, the probate lawyer helps executors of the estate manage the probate process. This involves helping with the estate planning, managing trusts, drafting wills, representing clients in court and acting as administrator or executor of the will or trust.

Types of Probate Lawyers

Usually there are two types of probate lawyers. Transactional lawyers are more experienced in handling the administration of estates and trusts. Probate litigators on the other hand are better at representing clients in probate court cases. Many lawyers can take on both types of responsibilities but generally, probate attorneys specialize in one area or the other. A written will, or lack of one, is a major factor to consider when selecting a probate attorney.

Role of a Will in Probate Process

 A will is a legally enforceable document prepared by the deceased prior to his or her death. A will makes the probate process much easier for the beneficiaries on various legal matters.

If the deceased left a will the probate lawyer can review it to make sure it wasn’t written or signed under duress. Elderly people with dementia for instance could be vulnerable to undue influence by individuals who may influence them to leave them a cut of the property.

A probate lawyer can also help in the following:

  • Appraising the total value of the property left for the descendants.
  • Managing and collecting life insurance proceeds for the deceased.
  • Preparing, reviewing and filing of the documents required by probate court.
  • Locating and securing all the assets of the deceased for the descendants.
  • Advising the beneficiaries on how to pay off the debts for the deceased.
  • Managing the checkbooks and accounts for the estate.
  • Determining and clearing all the state and federal taxes.

Obviously, when there is a legally written and binding will left by the deceased, a transactional probate attorney would be the most suitable person to hire. However, if there are several claimants or individuals who are protesting the will's authenticity or legality, you're going to need to find an attorney who can litigate.

Lack of a Written Will

When a person dies without leaving a written and signed will, their properties are considered to be in interstate. Under this condition, the estate is distributed according to the "intestacy" laws of the state where the property resides. For most states, the property is transferred to the surviving spouse of the deceased. For some states, the property is distributed to the spouse, children, siblings and any other close relatives. 

Cases of interstate inheritance can also be raised in the court where one claimant may request a suspension of intestacy law in his or her favor. A probate litigation attorney can represent different claimants in court to help distribute the estate. The probate attorney would need to secure renunciation from the descendant’s other relatives first.

Selecting a Probate Lawyer

In order to get the best probate lawyer for your estate administration or litigation, you should ask them some questions before hiring. The following are some of the questions you should ask your lawyer:

  • Ask your lawyer how many probate cases have they managed and how long they have been working as probate attorneys.
  • Inquire how they charge for their services.
  • Ask them for a detail of the services they will perform including final state and federal tax settlement.
  • Ask the lawyer how long they believe the probate process will take.
  • Ask the attorney how much will it cost in total for the process to complete.

Dangers of Probate

Probate Court Disagreements: If you are the executor (successor trustee) of an estate with substantial assets you may see the worst side of family members and people in general. Money and property can make some people do underhanded and mean-spirited things. Probate can ruin a family's structure and relationships between siblings and extended family. When there's hundreds-of-thousands of dollars or more wrapped in probate, family members can get antsy and anxious. Probate can last 12-18 months or longer and if a family member is waiting on a payout to make an investment, pay for medical expenses or send a child to college they can become a stressful and problematic obstacle to the entire process.

Expenses: During a "regular" probate proceeding you'll incur costs & expenses for the following:

  1. Attorney's Fees - This is usually scheduled and dictated by the state of the presiding case. Search for your state's mandated fees which outlines the maximum a probate attorney can be paid for an "administrative" case (a case with no litigation).
  2. Executor Fee - The Executor (also called Administrator), is eligible to receive a reasonable fee for their time and services. This fee varies by state, and some states are actually not very specific on how much the fee can be. In California the probate Executor fee is dictated & scheduled by the state the same way an attorney's fees are, but in Illinois the guidelines are very loose, citing a 2011 case where $50/hr. was a prevailing reasonable fee. Executors can also choose to forego this fee, in which case it would get absorbed into the general fund and distributed to all heirs equally upon conclusion of probate.
  3. Court - Filing fees for a probate case are at a minimum several hundred dollars and into the thousands depending on what needs to be filed and how often.
  4. Recording - If there is a transfer of real property you will have to pay for the County Recorder to change the Deed.
  5. Bond - A probate bond is typically purchased to protect the descendant's assets in the case of fraud. If the executor, heirs or attorney steal money or property from the estate a probate bond will help recoup the loss. Probate bonds typically cost 0.5% of the estate value up to the first $250,000 and they are usually paid quarterly from estate funds, or "fronted" by the attorney - in which case the estate reimburses the attorney at the conclusion of probate.

*Note: This is not a comprehensive list of fees, and probate fees vary from state to state. You should consult a probate lawyer in your state to discuss all the expenses of probate. Additionally, if there is any amount of litigation among heirs or claimants the costs & fees will increase dramatically. 

Time: What many attorneys would consider a "fast & easy" probate can still take 12-18 months to close. This is mostly dependent upon the probate court's schedule. This means that estate funds are set aside in a special trustee account at a local bank and typically sit the entire time untouched. The funds cannot be invested or otherwise moved without court permission or without authorization & accounting by the Executor. However, if there are extenuating circumstances and an heir needs funds for something critical, an exception can be made with permission from the court to advance funds out of their expected distribution. 

As a final note, if you're the heir to an estate that was left with no will or living trust, you may need an administrative probate law firm to help get through the paperwork and court bureaucracy. But if there's a large sum of money and you anticipate disagreements, family fighting and claimants to come forward, buckle up... you're probably going to need a probate litigation attorney.

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Chicago Estate Planning Lawyer

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