The term “probate” might be unfamiliar to many people and usually it’s not something you even think about until the situation requires it. Technically probate simply means “proving the will” through probate court proceeding. This means that if someone should pass away without a surviving spouse or domestic partner, any property left by that person needs to be decided through a probate court as to its sale or finalization. First you need to decide whether or not a probate court is needed and this is where the question comes into play, do you need an attorney?

California law does not require anyone to hire an attorney to settle an estate. The estate can be settled outside of court but some complications could require special knowledge or handling of the will and the property that could be more complicated than most people are willing to manage. Sometimes property can become dry but other times there could be a lot of sticky or messy situations such as contested claims against the estate by people claiming that they have an interest in the property, a decedent’s unfinished contract, insolvent estates or substantial property given to a minor, unless legal provisions to handle this are made in the will. There are so many details and unique situations that handling alone can be quite confusing.

There are fees involved when using an attorney. In probate court proceedings, standard attorneys fees have been set by California law and are based on a percentage of the gross estate. However, choosing a lawyer means that you can negotiate a lower fee. The gross value refers to the total value of the property before subcontracting any encumbrances or debts owed by the decedent.

If an estate does not require formal probate due to the fact that the property can be settled in a different way, an attorney is not entitled to receive the statutory feet. In these unique situations an attorney will bill for his or her time at an hourly rate which commonly varies from $200 to about $500 an hour.

During court proceedings the court will appoint a personal representative to handle the estate typically called either an administrator or an executor. The executor will be used if there is a will and an administrator if the decedent died without naming an executor in the well. This person is also entitled to fees referred to as the estate representative’s commission. Because the commission is subject to income tax and most probate’s are family situations where the executor is a close relative or friend this fee is often waived although not required.

Many people hire attorneys to handle probate estates for the simple reason that they just don’t want to have to deal with it. When a friend or loved one dies everyone close to that person can be gravely upset about the situation. It can be much easier to hire an expert to take over than to deal with the troublesome details of probate estate. Even if you choose not to use appropriate attorney for the entire project, you can hire an attorney for simple consultations at an hourly rate. A consultation with a lawyer can be used in one of three distinct situations:

• Complicated estates – if the estate is likely to be contested or have complicated assets such as other businesses, copyrights, royalties, trusts and bank accounts, a lawyer might be the best option.
• Questions – if you’re unsure of how to proceed in any area of the probate process, you should be able to hire an attorney on an hourly rate asking any questions that might arise in making you feel comfortable about the process.
• Double checking – if it is a complicated estate and you’ve done the actual work yourself, it might be best to have it double checked by a lawyer before distributing the estate. This will be a much less expensive option than paying the attorney to handle the entire project and it will make you feel more secure in the end.

For more information on hiring an attorney or even a probate real estate professional to help handle the case and offer explanations and information about the process please contact my office today.