According to government statistics, more than 1.8 million Americans age 65 or older passed away in 2011 alone. That represents a tremendous number of estates for survivors, trustees and others to contend with. In the majority of those cases, estates and survivors alike could benefit from pre-death/pre-incapacity legal planning. Without the proper estate planning, loved ones can face a nightmare of legal complications and unnecessary expense.
A variety of circumstances – not just old age – might find you in need of a probate and estate attorney. You might need someone to help you write a will or create a trust to direct the distribution of your property after death or incapacity. Or, you may find yourself involved in probate litigation. Another common scenario is the need to initiate probate litigation because a family member has passed away or become incapacitated. Unfortunately, not all licensed attorneys are capable of handling probate and estate matters.
In fact, “probate” and “estate” are not interchangeable fields of the law. “Probate” refers to litigation and “estate” (i.e., estate planning) refers to transactions involved in planning for contingencies arising from incapacity or death. Many probate and estate attorneys choose to specialize in one area or the other, but not both. On the other hand, some feel capable of handling both tasks. The expertise and experience of your probate and estate attorney should match your specific needs.
- choose an attorney who specializes in probate and/or estate planning
- evaluate your needs for a specific type of probate and estate attorney
- ensure that your attorney has experience handling cases in your state
- hire a probate attorney who practices often in the county and court where your case will be heard
- hire a friend or family member
- sign a fee agreement until you understand it and are comfortable with it
- think that flat fees or set rates are always a great bargain or realistic
- try to represent yourself
Not every attorney is equipped with the expertise to assist you in your probate matter or estate planning. Both probate and estate planning require extensive knowledge of this area of law, including your state’s rules for intestate succession, tax consequences of gifting property, and the necessary requirements to create a valid will.
Although most attorneys obtained some basic instruction on these topics in law school, it is unlikely that any attorney who does not regularly practice in this field will remember them, let alone keep up with changes in these fields. An attorney who does not regularly prepare estate planning documents or represent clients in probate matters will be less likely to know the latest updates on the law, which can cause problems for you and your family members in the future.
All probate and estate attorneys are not created equal. While probate and estate attorneys need to understand the same substantive law, probate and estate planning are very different fields when it comes to what the attorney actually does every day at work. Probate consists more of litigation – the ins and outs of examining witnesses and convincing the judge or jury – while estate planning is known more as a transactional area of the law – drafting the specific documents to accomplish the client’s goal.
For example, an attorney specializing in probate handles matters that involve the court, such as establishing the authenticity of a will, arranging a guardianship for an incapacitated person, and even prosecuting or defending will contests or actions for breach of fiduciary duty. On the other hand, estate planning involves drafting documents that provide for the distribution of property, including wills, trusts, and powers of attorney. While many probate and estate attorneys practice in both areas, most focus in one area over the other. Evaluate your needs (probate versus estate planning) and be prepared to ask questions to ensure that you will hire an attorney whose expertise and experience reflects the ability to handle your specific legal matter.
This advice applies more to probate law than estate planning. However, it is important to select an estate planning attorney who is licensed and actively practicing estate planning in the state in which you live. The area of probate and estate planning is governed by state law, typically spelled out in a state’s “Probate Code” or “Estates Code.” While probate and estate laws have similarities from state to state, each state’s laws have nuances that can amount to significant differences. For example, most states allow you to make your will “self-proving.” A self-proving will speeds up the probate process because the court can accept the will without taking the time to locate and contact the witnesses who observed it being signed.
However, some states do not allow wills to be self-proved, requiring the validity of the will to be proved in court. Your estate planning attorney should know if your state permits self-proving wills, and should take advantage of this tool if it is allowed. Another example is that some states allow the testator to appoint someone in his or her will to serve independently of the court’s instruction and guidance, further simplifying the administration of the estate. This also makes the probate process much cheaper, as dependent administration requires the executor to ask permission for every action he or she wishes to take in distributing estate property (i.e. listing real property for sale, distributing funds, closing a bank account, etc.).
If you live in a state where independent administration is not an option, it might be advisable to avoid the time and expense of the probate process altogether through the use of non-probate transfers like joint and survivor bank accounts or life insurance policies. A knowledgeable estate planning attorney will know whether your state provides for independent administration and if not, will be able to advise you on appropriate ways to avoid probate if necessary.
Do hire a probate attorney who practices often in the county and court where your case will be heard
A probate attorney needs to not only be licensed and practice in the state where your litigation will take place, but he or she also needs to be familiar with the county and court your case will be in. Probate judges are typically elected and can change frequently. Attorneys who regularly practice probate law in your county will be familiar with the current sitting judge, as well as his or her preferences on filing pleadings, scheduling hearings and courtroom conduct. An attorney’s familiarity with the court is priceless and will help your proceeding run smoothly. Judges are also more willing to trust an attorney who they know and have seen in their courtroom numerous times. This can be a huge benefit should your case run into an unexpected speed bump along the way.
Even though it may be convenient and even more economical to hire an attorney who is a friend or family member, this area of law is best left to a third party without any conflict of interest. In fact, some states prohibit transfers of property by will or trust to the person who drafted the instrument or anyone related to them. Whether you are having an attorney draft a will or probate someone else’s will on your behalf, neutrality is key. If a friend or family member drafts your will, it may lead to an accusation of undue influence and result in a contested will, triggering unnecessary legal expenses. It can also put the attorney in a tough spot, specifically in the case where the testator chooses to exclude persons from inheriting their property or when a parent decides to gift more property to one child over another.
Attorney fee agreements come in many shapes and forms. Many attorneys provide services on an hourly-fee basis and often request a retainer up front to ensure payment of those fees. If your chosen attorney charges by the hour, ask for an estimate of how much the entire case will cost and what percentage of that will be covered by the retainer. This will give you an educated idea of whether you can afford the attorney and prevents you from having to find another attorney mid-case due to inability to keep paying your original attorney. However, be cautious of relying too heavily on the estimate because the attorney cannot guarantee it will not cost more.
Conversely, some attorneys charge flat or set rates for certain tasks. Flat-fee arrangements often come with restrictions. For example, you may be entitled to a flat fee to probate a will only if it is self-proved and appoints an independent executor. Otherwise, probating the will requires preparation of additional witnesses to prove-up the will and may require several hearings in the case of a dependent administration. Be wary of flat-fee arrangements that seem significantly cheaper than other attorneys’ flat fees. Discounted flat fees might be due to the attorney’s lack of experience or volume business, meaning you might receive incompetent work or little personal attention.
Finally, some probate and estate attorneys may provide a contingent fee option. Contingent fees provide attorneys with a percentage of your recovery in the lawsuit. The percentage often goes up as the case drags on. For example, your attorney may receive 30 percent of your recovery if the case settles during pre-suit negotiation, 35 percent if it settles during mediation, and 40 percent if you win at trial. The upside is that your attorney has a vested interest in a good outcome for you. The downside is that your attorney will likely obtain a significant portion of what you recover, especially if the case goes all the way to trial. Contingent fees are rarely used in probate and estate litigation because they are often not feasible. It is difficult to estimate the value of an estate or whether there will be claims against the estate until it is opened. Additionally, calculating the fee is difficult in probate where there are often many vehicles by which property is transferred, including wills, trusts, insurance policies, and joint ownership with right of survivorship.
While representing yourself is ill-advised for nearly all civil and criminal cases, it is not even an option in some probate litigation. Although pro se legal representation (advocating on one’s own behalf before a court) has long been recognized in the United States, it does not allow representation of others, including guardianship wards and probate estates. While allowed, drafting your own estate planning documents is unwise. Even though handwritten or “holographic” wills are valid in some states, they are not self-proving and often require live testimony in court from a witness familiar with the testator’s handwriting. It is significantly more expensive and time-consuming to establish the validity of a holographic will, and wills are more frequently challenged when they have not been “formalized” by an attorney. Additionally, drafting wills, trusts and powers of attorney requires an understanding of all of the legal intricacies involved in those documents. Only a well-regarded estate planning attorney will be able to ensure that your plans are implemented properly and in accordance with the law.
If you find yourself in need of a probate and estate attorney, it is of utmost importance that you select an attorney whose experience and expertise meets your specific needs. Finding the right local attorney will require research, most of which can be done online. Asking your friends and colleagues for referrals is a great place to start. Your state’s bar association website should allow you to search for attorneys by specialty and location. Membership in a local bar association or an organization specifically for probate and estate attorneys demonstrates that the attorney is likely well-known by local courts and in tune with recent developments in the law.
Once you have obtained a list of potential attorneys, you should weed out the attorneys who do not meet your needs by reviewing the attorneys’ education, credentials, fields of specialty and amount of experience. While many competent attorneys never become board-certified in their specialty area, an attorney who is board-certified in probate and estate planning has extensive experience in this field and has passed an examination demonstrating a high level of knowledge and expertise.
Depending on the complexity of your probate and estate matter, you may want to opt for a board-certified probate and estate attorney. When you have narrowed down your list to a few options, you should contact the attorneys and schedule consultations with them. The consultation is the most vital part of your search. Regardless of an attorney’s legal capabilities, feeling comfortable and confident with your attorney is invaluable and can only be discovered through meeting with the attorney and speaking face to face.