A probate attorney can provide valuable assistance to a Personal Representative through the entire probate process from beginning to end. A probate attorney can be a vital resource since the laws in each state are different when it comes to probate proceedings and the requirements imposed by the probate court. Indeed, the first piece of advice for a personal representative is “hire an attorney.”
What estate administration involves
When someone passes away, the property which makes up that person’s estate will be distributed to the heirs and beneficiaries. In many cases, in order for the property to be properly distributed, the estate needs to go through the probate process. Probate requires many steps, including proving the existence of the will, if there is one; identifying the property and creating an inventory of that property; paying debts, funeral expenses, and taxes; and then distributing the remaining property to the proper heirs and beneficiaries.
How necessary is it to hire a probate attorney?
In order to decide whether you actually need a probate attorney, there are several questions you need to ask. If your answer to the majority of these questions is “yes,” then you will most likely need the advice and expertise of a probate attorney. These questions can help determine how problematic the process might be and the potential for additional issues.
Each state has its own general probate proceedings
In nearly every state, an estate can possibly be eligible for a simpler proceeding when the estate is particularly small. Many states have what is called “summary probate.” This process provides for an easier, more streamlined process. In some situations, you might be able to get around probate entirely with a basic sworn statement. However, if the estate you are administering does not qualify for a simplified probate procedure, then it would be a better idea to hire a probate attorney to help you through the often lengthy and complicated process.
Family disputes and will contests can be an issue
It is not uncommon for family members to have disputes, especially if they are already not getting along. A will contest can be inevitable in some situations. If that is the case, you should discuss your needs with a probate attorney as soon as you can. If a relative of the deceased will likely file a legal action to contest any part of the administration of the estate, then you need legal assistance.
Beware of the estate with complicated assets
If the estate you are administering only involves basic, common assets like checking accounts, vehicles, a house, and some personal property, then it may be just simple enough to handle on your own. However, if the estate you are administering involves assets such as commercial real estate, a business or other assets that require special treatment, then you should hire a probate attorney right away. Especially with a business, you will most likely need assistance in appraising and selling the business if there is no business succession plan in place.
What should you do if there is insufficient money to pay the debts
While we all hope that when we die there will be sufficient assets and cash available to pay all of the debts, taxes and any other expenses related to settling the estate, while still having assets remaining to give to your beneficiaries. That is not always the case, however. For the executor in those cases, the trick is determining which debts must be paid first. That depends on the laws in your state. Usually, there are certain creditors that must be paid first. If you are not familiar with how that works, you need to seek professional advice as soon as possible, to avoid personal liability.
Determining whether estate taxes are due and filing the return if necessary
Although for most estates, the total value is low enough that federal estate taxes will not be imposed. The current federal tax exemption is $5.45 million. That means, as long as the total value of your estate is below that amount, you will not be assessed estate taxes. But there are some estates that exceed the exemption amount, and if that is your situation as executor, then you need to know how to determine the tax liability and handle the filing of tax return.
If you have questions regarding the probate process, or any other estate planning needs, please contact a probate lawyer at the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.