What do you know about what a probate attorney does?
If you’ve ever lost a loved one, you’ve probably had to deal with the probate process. This is a formal legal process that recognizes whether a will is valid, and appoints an executor. This executor administers the estate and distributes assets to the beneficiaries.
Not all wills, nor all assets, trigger the probate process. Probate occurs when the will involves real estate. Some assets, like life insurance policies, go directly to the beneficiaries without going through probate.
Depending on your loved one’s estate, you may never need a probate attorney. However, a probate attorney will certainly help everything go more smoothly. A probate attorney can handle creditors, issues with taxes, and issues with beneficiaries. Probate attorneys can also ensure the execution of your loved one’s will follows the timelines for your state.
In Louisiana, we refer to probate as “succession”. Though the terminology is different, Louisiana’s succession laws and other states’ probate laws are very similar.
In this post, attorney Joseph Greenwald, Jr. will help answer your questions about exactly what a probate attorney does, and when you need one.
What is Probate?
Before we talk about probate attorneys, let’s talk about probate. Again, Louisiana law refers to the probate process as “succession”.
As we mentioned earlier, probate is a judicial process where a court verifies a deceased person’s will as a legal document. The courts will then grant the executor the power to administer the estate. One duty of the executor of a will is to “step into the shoes” of the deceased to settle their affairs.
The probate process includes locating and determining the value of the person’s assets, paying their final debts and taxes, and distributing their estate to their beneficiaries.
Obviously, a deceased person cannot own property. Thus, when a person dies, all their property must pass to someone else. Basically, the probate process will legally define what the estate entails, and who the different parts of the estate will pass to.
The probate process also enables someone to contest a will. This can happen if someone believes they have a more recent will from the deceased, or if someone objects to the appointed executor.
Not every estate will need to go through the probate process. We’ll talk more further below about which estates will go through probate.
What Does A Probate Attorney Do?
A probate attorney is a valuable resource to the executor of an estate. A probate attorney can help the executor of an estate with tax deadlines, outstanding debts, and the distribution of assets.
It’s entirely possible to handle estate planning yourself. However, not everyone is comfortable with this, and if you mess up, you’re liable. There are tax deadlines to consider, creditor notices, and Medicaid reimbursements. All of these things, or any combination of these things, may or may not apply in any specific case.
Probate attorneys aren’t just valuable resources to executors. A beneficiary of an estate can also hire a probate attorney, especially if they have reason to mistrust the executor.
Probate attorneys can help deal with commercial real estate as well as residential real estate. They can also provide direction when multiple heirs disagree about what to do with a piece of real estate.
How Much Does A Probate Attorney Cost?
Like many lawyers, there are a variety of possibilities when it comes to paying for a probate attorney. You can pay a probate attorney hourly, via a flat fee, or through a percentage of the estate’s value. (See our blog: How Long Does Probate Take?)
Depending on the estate’s complexity, an attorney may let you choose between these options.
There are some states where probate fees depend completely on statutory fees. This means that you pay an attorney some percentage of the estate they’re handling. These statutory fees depend on the estate’s gross value. For instance, an attorney may receive:
- 4 percent of the first $100,000 of an estate
- 3 percent of the next $100,000
- 2 percent of the next $800,000
- 1 percent of the next $9,000,000
- 5 percent of the next 15,000,000
Therefore, an estate worth $100,000, before it pays out any debts, results in a statutory fee of $4000. An estate worth $1,000,000 results in a statutory fee of $23,000.
The only sure way to know what fees you may have to pay to a probate attorney is to speak to one. More than likely, your costs and method of payment will depend on the size and complexity of the estate. In Louisiana, many probates can occur for less than $5000.
Do I Need a Probate Attorney?
An estate will usually go through a successions or probate process if:
- There is no valid will to name an estate executor
- Problems with an existing will arise
- No beneficiaries exist
- When a valid will needs this process to facilitate paying debts and transferring ownership
Many banks also require a succession or probate process before they allow transfer of bank accounts.
As far as real estate goes, a good rule of thumb is that if the decedent owned land or had more than $100,000 of assets, you’ll have to go through probate.
Again, just because you are going through the probate process does not mean you need a probate attorney. But the advice of a probate attorney can ensure that all creditors and beneficiaries receive their property quickly and efficiently.
You will not need to go through probate if the deceased had a transfer-on-death deed or a living trust. If a piece of real estate is in joint tenancy with a right to survivorship, the law does not require probate.
If you are the surviving spouse of the deceased in Louisiana, don’t worry about probate. This is a community property state. However, other relatives or children of the deceased will likely be headed to probate court.
Contact the Greenwald Law Firm Today
Attorney Joseph Greenwald, Jr. has years of experience in successions and probate. If you are in the Shreveport area and have questions about Louisiana’s succession policy, call the Greenwald Law Firm at 318.219.7867. You can also leave us a message on our website.