Executive Summary
- Probate is the process of distributing the assets of an estate after an individual has passed away.
- Some of the responsibilities of a probate lawyer include filing documents with the probate court, advising estate executors, resolving inheritance or probate disputes, and offering support during litigation.
- The advantages of hiring a probate lawyer include a more efficient probate process, informed legal advice, and guidance in navigating court processes.
- A probate lawyer is not necessary during probate but can make the process easier by offering guidance, support, and advanced knowledge of the legal process.
Introduction
Anyone who’s gone through probate knows that it can be slow, stressful, and often emotional, involving inventorying all estate property and distributing it to the legal heirs of a deceased loved one. Fortunately, hiring a probate lawyer can help expedite and streamline the process while ensuring you receive everything that’s due to you.
A probate lawyer is a legal professional who assists clients in navigating the probate process in order to settle their loved one’s estate. A probate lawyer may take on many tasks and responsibilities in order to support clients and reduce stress during a complex process and a difficult time. From preparing filings to ensuring assets are distributed according to the deceased’s will, a knowledgeable probate attorney can help resolve your family’s estate more efficiently and with minimal strife. Understanding all the ways a probate lawyer can offer support during the process can help you more comfortably navigate probate.
What Is Probate?
Probate is the legal process of identifying, administering, and distributing assets of an estate following a person’s death—ultimately, probate ensures that property and other possessions end up in the right hands, either in line with the wishes of the deceased or according to state law.
If a will exists, the court will check that it’s valid, signed, and witnessed before distributing assets from the estate according to the wishes of the will creator. If no will exists, the court will appoint a representative to assess the estate’s value, pay off any debts and taxes, and resolve disputes that arise among interested persons.
Probate involves several key steps, including appointing the executor responsible for leading the process, paying all debts of the estate, cooperating with the probate court, and distributing assets to beneficiaries. During this process, it’s also possible that disputes can arise between beneficiaries and other interested parties, which can extend probate.
The probate process takes three different forms in the state of Arizona:
- With an informal probate, assets are distributed with only minimal supervision from the court and no visits to the courtroom. With a formal probate, a judge rules on the case after one or more court hearings.
- Typically, formal probate is required when questions exist surrounding the identification of heirs, the choice of personal representative, or the will’s validity.
- Finally, supervised probate occurs when an estate is contested and involves the court overseeing all aspects of the case, from opening the estate to taking creditor statements. While any individual involved in the estate can request supervised probate, the court usually only requires this process in order to protect an inheritor or creditor.
If you are unsure which type of probate is necessary or how to navigate any of the processes, a skilled probate lawyer can provide some insight and help you determine what next steps are needed.
The Role of a Lawyer
A probate lawyer is a valuable resource in the probate process by offering versatility, as they can serve several roles. The role of a probate lawyer often depends on the needs of the client that they are supporting and their stake in an estate.
Some of the roles a probate lawyer can play are:
- Guiding Executors and Administrators – A probate lawyer may take on the role of assisting executors and administrators, which may involve interpreting the laws, understanding their responsibilities, and filing any necessary paperwork.
- Assisting with the Will – A lawyer can assist an executor in reading through and interpreting the will to ensure it is followed in alignment with the wishes of the deceased.
- Filing Legal Documents – A probate lawyer can assist with the creation and filing of important documentation like petitions to open or close probate, petitions to act, inventory documents, and accountings of estate assets.
- Serving as the Executor – Sometimes, the creator of a will may designate an attorney to serve as an unbiased, objective executor of an estate.
With the versatility of a probate lawyer and their detailed understanding of state probate laws, they can offer support in many areas of the process. Whether you are an executor, administrator, an identified beneficiary, or a legal heir, you may benefit from a probate lawyer.
Key Responsibilities of a Probate Lawyer
The responsibilities of a probate lawyer can range from offering support during probate administration to supporting in potential litigation. Ultimately, some of the responsibilities of a probate lawyer can be wide-ranging depending on whether they’re assisting an executor or a beneficiary. Probate lawyers are most often sought after by the estate executor or administrator for assistance in interpreting their responsibilities.
Some of the responsibilities of a probate lawyer can help with include:
- Providing insight into Arizona estate and probate laws
- Connecting estate administrators with additional resources or experts
- Reviewing the will and the terms laid out by its creator
- Gathering evidence for will contests or disputes
- Offering support in soliciting and resolving creditor claims
- Acting as a third-party mediator to support in resolving disputes
- Assisting with the filing involved in closing the estate
- Preparing required documents to be filed with the probate court
- Filing petitions with the probate court
- Consulting executors on estate accounting reporting requirements
- Advising executors about estate and income tax requirements
In some cases, a personal representative of an estate may make additional requests of a probate lawyer to assist with administering the estate. These requests may include helping to inventory estate property, resolving finances of the estate, and managing estate accounts.
Why Hire a Probate Lawyer?
Grieving a loved one’s passing is stressful enough without having to contend with the legal requirements of probate— a probate attorney can help offer peace of mind. Working with a probate lawyer can provide all of the following benefits.
An Expedited Process
Probate often takes more than a year to complete. Whether you want to receive assets faster or simply avoid spending months in court, a probate lawyer can expedite the process. Probate cases can be complex, and without a lawyer, you may find yourself filing incorrectly or incompletely. A lawyer can help avoid these issues, ensuring the court receives all the necessary materials on time.
Family Conflict Resolution
Family disputes are all too common in probate cases. In some situations, issues arise because the deceased neglected to leave a will. At other times, interested parties may argue that the will is invalid. Whatever the circumstances, a probate lawyer can help navigate family disputes and prevent long-term rifts.
After all, probate attorneys have the experience, skill, and tact needed to explain what’s happening and present families with their options. The fact is that lawsuits sometimes arise over disagreements regarding assets and property. One of the best reasons to hire a probate lawyer is to prevent situations that lead to lawsuits, saving you money in the long run.
Support in Courtroom Litigation
Probate lawyers can also argue for individual parties in the event that a will is contested. While most wills are relatively clear and straightforward, some require the court to intervene and determine who will inherit.
Although you are allowed to represent yourself in court, doing so will likely leave you at a disadvantage. A skilled probate attorney can ensure discovery deadlines are met and that evidence is presented in the correct manner.
Guidance in Handling Tax Issues
Some individuals make arrangements for their assets to be placed in tax-advantaged ownership structures before they pass. However, if the estate owes money in the form of taxes and debts, these payments will have to be made before assets are given out.
An experienced probate lawyer will be able to defend any choices made regarding ownership structures to taxing authorities. Additionally, they can help with financial issues surrounding debts, contracts, or business deals that were incomplete at the time of the estate owner’s death.
Common Questions About Hiring a Probate Lawyer
When should you hire a probate lawyer?
Because a probate lawyer is versatile, there are many instances where you may consider hiring one. If disputes or potential litigation arise, you have questions about how to handle the probate process, or you believe there are concerns with the will, you should hire a lawyer as soon as possible. A probate lawyer is helpful whether you are an executor, administrator, creditor, beneficiary, or other legal heir.
How much does a probate lawyer cost?
The costs of a probate lawyer can vary widely depending on the firm and the amount of time that the lawyer puts into your case. Many firms have an initial retainer fee for their services and then charge hourly after that.
Retainer fees might range from $3,000 to $7,000 but can be higher. Meanwhile, hourly fees might range from $200 to $500, depending on the firm. It’s important to do your research and learn more during an initial consultation. Keep in mind that in cases where a lawyer is brought on to assist in the distribution of the estate, they are often paid directly from the estate funds rather than out-of-pocket.
Can you handle probate without a lawyer?
Yes, you can likely handle probate without a lawyer in many instances, especially with simple or low-value estates. However, probate is not always straightforward, as there may be disputes along the way or questions surrounding the will. The support of an attorney can go a long way toward helping you navigate potential challenges and is valuable for helping you understand your responsibilities during the process.
How to Avoid Probate
Clearly, hiring a lawyer can help simplify the probate process while ensuring heirs receive what’s due them. Still, many people opt to set up their estates in a way that avoids probate altogether.
Here are some of the types of assets and property that don’t have to go through the probate process:
- Assets with Designated Beneficiaries– Items that already have a stated beneficiary typically don’t have to go through probate. Examples include a life insurance policy that states the beneficiary on the deed.
- Property Held Jointly With Survivor’s Rights – The court does not have to weigh in on property held jointly with survivor’s rights. In other words, if one property owner dies and someone else’s name is on the deed, the second person now owns the property in full.
- POD and TOD Items – Certain assets marked as POD (Payable on Death) or DOD (Transferable on Death) may not have to go through probate. These include real estate, vehicles, bank accounts, retirement accounts, and stocks.
- Items Placed in a Living Trust – Whatever assets are placed in a living trust are owned by the trust rather than the individual who passed. Hence, they don’t need to go through probate. If you’re using this tactic, be sure to transfer ownership of your property to yourself as the trust’s trustee.
There are some cases where having some property in a living trust and others included in a will can complicate probate. If you are unsure how your loved one’s estate plan affects the probate process, then you should contact a skilled probate attorney with any questions.
Contact JacksonWhite Law for Probate Services
Probate is an important process for distributing the assets of an estate to beneficiaries after an individual has died. However, probate can be difficult to navigate because of the complex nuances that exist or potential disputes that arise between interested parties. If you or a loved one is embarking on the probate process, you should consider scheduling a consultation with a skilled probate lawyer.
In your search for an effective Arizona probate attorney, don’t hesitate to contact JacksonWhite Law for a consultation. Our experienced probate lawyers are ready to help with whatever issues you’re facing, from ensuring assets are distributed appropriately to preventing your case from being hung up in court. Additionally, we can work with you to set up an estate or trust that saves your family time and stress down the line.
Call our Probate team at (480) 467-4365 to discuss your case today.
