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How Do You Know if Your Probate Attorney Is Qualified?

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b2ap3_thumbnail_will.jpgWhat Should I Ask an Attorney that Handles Probate and Estate Planning?

Ask about their experience; ask them how many probates have they handled in the last 10 years, and ask if they’ve been sued for one.

Questions to Ask

It may be a common misconception, but there are very few specializations in law that an attorney must qualify for. For instance, once an attorney passes the state bar and is sworn in, that attorney is permitted to practice any area of law (one exception is writing patents, which requires specific certification). This begs the questions, how do I know my attorney is qualified to practice probate law?

While an attorney may practice almost any area of law, typically a lawyer will specialize in one or two, such as wills and probate. You will want to find a lawyer that specializes in probate. Most firm websites have a list of practice areas and their experience within each practice. This is a good starting point. Thereafter, you may want to set up an initial consultation with an attorney at the firm to get a “good feel” for that all-important lawyer/client relationship.

Do Ask

● Do you have experience in probate law? What kinds of cases have you taken?
● Have you taken any cases with similar facts or assets as my estate, what were the outcomes?
● Do you have experience in the probate process in the particular court and state(s) where we will have to initiate the probate process and distribute the assets?
○ This is a very important consideration, especially where there is property that is located outside of the state. In those instances, the probate process must be initiated in other states if there is property there.
● What is your fee structure and what can I expect in fees?
● What do you think is a reasonable timeline and resolution to go through the entire probate process?

Estate Plan vs. Probate

A qualified attorney who has experience in probate should be able to answer these questions specifically, and not in a general fashion. Getting specifics on your case will give you an educated guess at the potential fees associated with probate. Furthermore, probate and estate planning are two different specialties. While some attorneys and/or firms will handle both areas, be sure to understand what you are asking for. Typically, probate is the process of administering an estate. This includes going to court to initiate the process, proving to the judge that will is valid, providing proper notice for creditor claims, and then distributing the property to the beneficiaries according to the terms of the will. Probate may also involve litigation if other parties are questioning the authenticity of the will.

On the other hand, estate planning is more transaction-based practice. Estate planning involves the actual drafting of the wills and other documents in accordance with state laws. Estate planning comes first, then probate is the process of administering the estate plan. You should be particularly diligent in finding the right attorney for the right work.

Additionally, you should not sign a fee agreement unless you understand and are comfortable with it. The fee structure may vary, and only cover certain kinds of services regarding the probate process. The fee may also contain escalators where the fee will increase depending on potential factual developments (such as litigation over the will and the beneficiary’s interest(s) in the decedent's property).

Conclusion

You should be comfortable asking a prospective attorney these questions and be satisfied with their answers. While you should not expect free legal advice at your consultation, you should expect the attorney to walk through potential fee arrangements and their range of services, as well as their experience in those services. While it can be daunting to find the right attorney, the cost of not having one at all can be substantial. Working with the right attorney can ensure a smooth probate process and timely distribution of property to the beneficiaries.

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Guest Tuesday, 12 December 2017

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