Questions To Ask A Probate Attorney

Anyone who has lost a loved one knows the grief and sadness that comes with death. Dealing with a probate attorney and finalizing the legalities of a will may seem unimportant compared to losing a loved one, but the process needs to be followed carefully.

Whether you want to set up the administration of your own estate assets before death, or you’re dealing with the transfer of the property of a loved one who has passed, there are important questions to ask a probate attorney. These will ensure that you’re hiring the best-suited individual and following the state’s legal requirements. Since having a clear understanding of what to expect in the coming months will make the probate process far less overwhelming, we’ve put together this comprehensive guide covering everything you should ask and bring to your first consultation.

Why Do You Need A Probate Attorney?

If you have recently lost a loved one and have been named as the personal representative in their will, you may be feeling very daunted by what lies ahead. The best thing you can do to ease the administrative burden you face during this emotionally challenging period is to appoint an experienced probate or estate planning attorney to represent you throughout the probate process. They will take care of every aspect of the process, helping you avoid common probate errors and ensure that your loved one’s estate is distributed as quickly as possible.

The process can get complicated at times, in which case a probate attorney can be a valuable asset. A state-licensed probate attorney serves as an advisor for the executor and beneficiaries. Their day-to-day responsibilities may vary but their assistance is invaluable.

The role of a probate attorney includes, but is not limited to, settling disputes, the sale of the estate property, and distributing the assets of the deceased among the beneficiaries.

In Florida, all estates being probated must be represented by a “personal representative” (in some jurisdictions, the personal representative is called an “executor”). This person is usually named in the deceased’s will, but can also be appointed by a court when a person has died without a will (i.e. “intestate”). Since probate is a court-supervised process that is legally complex, Florida probate law requires that the personal representative must be represented throughout the probate process by a lawyer. They will handle all the administrative and legal aspects of the process.

So, you’ve made the decision to hire a probate attorney, but have you considered the necessary questions to ask?

What Is Probate?

For those who have never dealt with the loss of a close family member before, coming to grips with the intricacies of the probate process can be challenging.

Essentially, probate is the legal process by which a deceased person’s assets are identified and distributed to heirs following the settlement of any creditor’s claims on the estate. The “estate” is simply the entirety of the deceased person’s assets — in other words, everything they owned at the time of their death. Where a person has died with a will, probate will also involve ensuring that the deceased’s will is legally valid. During the probate process, the validity of a deceased person’s will is analyzed and verified and a personal representative is appointed.

Under Florida law, if a person passes away while owning assets in their own name at the time of their death, their estate will need to be “probated.” Probate is a mandatory process that applies regardless of whether the deceased left a will. However, some estates are able to avoid probate through the use of trusts and other estate planning mechanisms that have been drawn up by a wills and trusts attorney.

The Four Stages of the Florida Probate Process

The probate process typically unfolds in four stages once an attorney has been appointed:

First, the lawyer must file a petition that notifies the heirs and beneficiaries — that is, all those named in the will or those who stand to inherit in terms of intestate succession law — that probate has commenced. A notice will also need to be published giving creditors notice of the probate hearing so that they have an opportunity to file claims with the estate.

Next, the lawyer will need to prepare an inventory of all the deceased’s assets. In some cases, some of these assets will need to be liquidated to settle creditors’ claims. In the third stage, the inheritance lawyer will determine which creditors’ claims are legitimate, and settle these claims together with any other estate liabilities, such as funeral expenses, medical bills, and unpaid taxes.

Finally, they must draw up a plan for the distribution of the remaining estate assets, which the court must approve in a probate hearing. Once this approval has been granted, the assets will be transferred to the heirs accordingly.

In terms of Florida Statute 733.602, it is the personal representative’s duty to settle any debts owed by the estate, pay any estate taxes, and thereafter distribute the remaining assets to the estate beneficiaries. In practice, the probate lawyer hired by the personal representative will discharge these duties.

Key Questions To Ask Your Probate Attorney

While each case is unique and will have its own specific points to consider, here are the important questions to ask your (potential) probate attorney. Your lawyer will play a pivotal role throughout the probate proceedings — not only will they handle all the legal aspects of the process, but they will also provide you with invaluable emotional support during this challenging period in your life. To help you gain a clearer understanding of what lies ahead and establish a good rapport with your attorney in your first consultation, consider asking the following questions.

1. Do You Have Experience In Cases Similar To Mine?

The law can be complicated and executing an individual’s wishes may not always be straight forward. Asking your probate attorney about their experiences and whether or not they have dealt with a case like yours can increase your confidence significantly.

With more than 50 years of serving Coral Springs, our experience includes a variety of cases in several practice areas — including probate.

2. What Can I Expect From The Probate Process?

The probate process can vary in length of time, but generally, completion can take a few months to a year (or more). The main determining factors on this duration includes the number and type of assets and the state’s legal requirements.

You will find probate less stressful if you know what to expect from each stage of the process. Ask your inheritance lawyer to explain the various aspects of probate to you in detail, and follow this with questions about what your role will be in each stage. Every probate is different, and every probate lawyer will work slightly differently from the next, so it’s good to get a sense of your lawyer’s preferred approach and how much involvement they will require from you along the way.

3. What Documents Will You Need From Me?

There are several documents that need to be completed and filed with the Probate Court during the probate process. If a will exists, then the original will and death certificate also need to be filed in court.

Your probate lawyer will need many documents from you as the process unfolds. To make the process of collating these documents easier for both of you, it’s a good idea to ask them up front which documents they are likely to need along the way so that you can begin looking for them. They will also explain which documents you will need to forward to them as you receive them, for example, bills, cancellation notices, and invoices relating to funeral and burial expenses.

4. Are There Any Potential Obstacles Or Complications To Be Aware Of?

In most cases, the probate process is fairly straight forward. Especially if you have the help of a professional. But sometimes there can be a few issues that occur. One example is if family members challenge the validity of the will. These unforeseen instances are where a probate attorney can be especially helpful.

While many probate processes are fairly straightforward, some are complicated by ambiguous will clauses, litigious beneficiaries, or difficult estate creditors. Give yourself peace of mind by having a detailed upfront conversation with your inheritance lawyer about any aspects of your loved one’s estate that you are concerned about. This will help you to prepare for, and possibly even mitigate, any complications that are expected to arise.

For example, if there is likely to be conflict between the estate beneficiaries due to a particular clause in the will, speak to your lawyer about how you can broach this issue with family, perhaps even with the help of a mediator, to avoid lengthy litigation over the distribution of the estate assets.

5. What Assets Are Subject To Probate?

Any property that was owned solely by the deceased is normally subject to probate, including a car and real estate. In many instances, shared property is also subject to probate. There are instances when probate is not necessary. For example, if the deceased co-owned assets with their spouse. These assets may be exempt from probate, if held as joint tenants or tenants by the entireties.

An attorney will be able to best advise on which assets need to go through probate, especially when it comes to retirement accounts, life insurance, and property that’s held in a living trust.

6. How Long Will The Process Take, And How Regularly Can I Expect Feedback?

Many people who lose loved ones become frustrated by the length of probate proceedings. Unfortunately, due to the nature of the process and delays in the court system, even a relatively simple probate can take many months to complete. More complex probates can take years. It’s a good idea to manage your expectations by gaining clarity upfront about how long the process is likely to take, although you should remember that nothing is guaranteed.

You should also ask your inheritance lawyer what the major milestones in the probate process are, and discuss how regularly they will provide you with feedback.

7. What Will My Involvement Be At Each Stage?

The personal representative must meticulously identify all of the deceased’s assets — including real estate, motor vehicles, bank accounts, investments, and so on — and assume control of those assets while probate is underway. They must also identify the estate beneficiaries (those who stand to inherit from the estate, whether in accordance with intestate law or the deceased’s last will and testament) and any estate creditors.

Ask your probate attorney to explain what your role will be in each stage of the process. Every probate is different, and every probate lawyer will work slightly differently from the next, so it’s good to understand how much involvement they will require from you along the way.

8. What Is Your Hourly Rate And Fee Structure?

Last but not least, you should inquire early in the process what your lawyer’s hourly rates are and how their fees are structured. In many cases, probate attorneys will only charge the bulk of their fees once the estate has been finally wound up. In the event that the probate proceedings become contested, you may need to negotiate a different fee structure with your attorney.

Documents To Bring To Your First Consultation With A Probate Attorney

Since the first thing your lawyer will need to do is identify and safeguard the assets of your loved one’s estate, you must provide them with all relevant information and documentation relating to your loved one’s property. They’ll also need certain documents to help the personal representative apply to the court to be officially appointed as representative of the estate. While your attorney will continue to request certain documents from you as probate progresses, there are several documents that you should take to your first consultation to help get the ball rolling.

If possible, you should take the following documents with you to your first consultation with a probate attorney:

• Death certificate: you should bring a “short form” death certificate to the consultation (this is the type of death certificate that does not show the cause of death). Death certificates can be obtained from your local Department of Health Office.
• Will and trust documents: take any wills, codicils, and trust documents left by your loved one with you. If you are uncertain which will is most recent, take all the wills and other testamentary writings that you find in your loved one’s place of residence.
• Contact information: take a list of the names, addresses, and contact details of all the beneficiaries named in your loved one’s will with you (if applicable). You should also provide the name and contact details of the personal representative nominated in the will (if this isn’t you).
• Inventory of the estate: before the consultation, you should make a list of all your loved one’s property, including any real estate, motor vehicles, boats, bank accounts, investments, stocks, collectors’ items, and valuable artworks. You should also try to ascertain whether any legal claims form part of your loved one’s estate — for example, a personal injury or wrongful death claim. Take this list with you to the consultation with your probate attorney and keep a copy for your own records.
• Debts and liabilities: take a list of your loved one’s debts and any documentation relating thereto — for example, a mortgage, loan agreement, or statement of credit card debt. You should also think about whether your loved one had any other legal liabilities, such as the obligation to pay child or spousal support, or a judgment debt that they were required to settle.
• Property deeds: if your loved one owned or co-owned real estate, take any property deeds (whether the property is situated in Florida or not) and all documentation relating thereto (such as mortgage agreements) with you to the consultation.
• Financial statements: compile all the recent bank statements, investment account statements, retirement account statements, and documents relating to safety deposit boxes that you can find. If your loved one has any stocks, take the stock certificates with you to the consultation too.
• Life insurance policies: if your loved one had any life policies, take the policy documents with you, as well as the names of the beneficiaries of the policies.
• Tax returns: take any recent tax returns you can find, along with any other tax-related documentation.
• Business interests: if your loved one was involved in any businesses, take all documentation relating to their business interests with you. This could include partnership agreements, shareholder agreements, and share certificates.

Ideally, you should take the originals of the documents listed above. This will allow your probate lawyer to verify the documents and make the necessary number of copies. If you find any other documents that appear to be related to the financial and property affairs of your loved one, and are unsure of their relevance, take these with you just in case.

It’s a good idea to discuss the fact that you will be looking for these documents with other family members. During a period of grief, emotions are heightened, and some family members may react badly to steps being taken without their knowledge. Even if you have been nominated as personal representative in your loved one’s will and have a legal duty to collect these documents, it’s still a good idea to let other family members know that you will be gathering documentation related to your loved one’s estate to hand over to an attorney.

Get The Help That You Need: Probate Attorney In Coral Springs

Navigating probate doesn’t need to be overwhelming. At the Law Offices of Gary I. Handin, P.A., we strive to make the probate process as stress-free as possible for our clients. We have helped countless families in Broward County through the probate process, including the Coral Springs, Tamarac, and Margate communities, helping them through some of the most difficult periods in their lives.

With our team’s many decades of experience in South Florida probate proceedings and estate planning, you can rest assured that your loved one’s estate is in good hands. We are renowned for our depth of legal knowledge and skill, meticulous attention to detail, and compassionate client service. With our probate lawyers by your side, you will have the utmost peace of mind that your loved one’s estate will be expeditiously probated, so you can focus on supporting family and looking after yourself during this difficult time.

For an experienced probate attorney who will handle your probate proceedings with sensitivity and care, contact the Law Offices of Gary I. Handin, P.A. today at 954-796-9600 or toll-free at 1-877-815-4560 to arrange a consultation.

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