If you are planning to hire a probate attorney, there are certain questions that you should ask them first. Losing a loved one is always a difficult experience, not only emotionally but physically, as well. It is a difficult physical experience because you might also be tasked with the responsibility of settling the estate: preparing the funeral, searching for the will (if there is any), getting the will admitted to probate, settling the debts, and distributing the remaining proceeds to the beneficiaries.
It is always essential to consult with a probate attorney to ensure you are on the proper track in settling an estate of a deceased loved one. The questions to ask a probate attorney can be categorized as substantial, expertise, and financial.
SUBSTANTIVE QUESTIONS TO ASK A PROBATE ATTORNEY
First, it’s always important to ask questions about the probate proceeding.
Do I need to go through probate?
In New York, if the decedent had no property, no court proceeding is required. This is because there are no assets to distribute.
If the decedent had personal property of less than $50,000, it’s called a small estate, and the court appoints a voluntary administrator.
If real property is involved, it’s not considered a small estate anymore. If there’s a will, a probate proceeding is filed. If there’s no will, an administration proceeding is filed.
If the value of the estate is $50,000 or more, if there’s a will, it needs to go through probate in order for the will to be admitted as authentic and validly executed. If there is no will, New York’s intestacy laws will apply, and the property will pass to the relatives most closely related to the decedent. In that case, a petition for the issuance of letters of administration is required for the appointment of an administrator who will manage the property of a decedent who died without a will.
What property is included in probate?
In New York, all property owned by the decedent in his own name without a designated beneficiary is generally a probate asset. Properties owned jointly by a decedent, owned with a designated beneficiary, or that pass by operation of law are generally non-probate assets. Examples of non-probate assets are: household goods that are immediately transferable to other family members living in the household at the time of the decedent’s death, trust assets, life insurance proceeds, assets held in an account designated at a “Payable on Death (POD)” or “Transfer on Death (TOD)” account, retirement or pension accounts, and certain types of jointly owned property if owned with “rights of survivorship.”
How long will the probate process take?
It generally depends on the size of the estate, the possible number of heirs, and if there are disputes as to the authenticity of the will or the property in the estate. It could take anywhere between a few months to a year or more. Your attorney will be able to give you an estimate depending on the circumstances of your case.
How are creditors handled?
All estate creditors are entitled to payment prior to the distribution of proceeds to the heirs. In New York, there is a particular hierarchy or order in paying the creditors. Your probate attorney should be able to guide you in this aspect.
What questions would you ask a probate attorney if you were in my shoes?
You don’t have to come up with all of your own questions. You can ask them to think of some questions themselves and answer them for you!
EXPERTISE QUESTIONS TO ASK A PROBATE ATTORNEY
Second, it’s important to determine the expertise of the attorney to see if he has enough experience to handle your case effectively and efficiently.
How much of your practice is devoted to probate law?
There are some attorneys who handle other types of cases aside from probate law. There are some attorneys who specialize in probate law. Find someone who has this specialty because an inexperienced attorney might make mistakes in the filing, which can translate to substantial costs, or may do the procedure properly but at a slower pace than an experienced probate attorney. It’s best to trust an attorney in New York with an expertise on probate law.
Have you handled a similar case like mine?
Several problems might arise in an estate case. An ambiguous clause or gift can trigger intestacy. There could be challenges as to the validity of the will, or a beneficiary’s death might trigger substitution of heirs. Your probate attorney should have similar experience to the issue you are facing.
Have you handled a similar case in the same court?
Each county is different, and every judge has their own rules. It will be easier if your probate attorney has had experience filing and appearing in that particular county with jurisdiction.
QUESTIONS TO ASK A PROBATE ATTORNEY ABOUT THEIR FEES
Lastly, there are questions to ask a probate attorney about the fees and fee structures that they offer. An attorney can charge an hourly fee, which on average is $400/hour. For smaller estates, they could charge a flat fee of $3000. If the estate has a possibility of recovering an asset, but also includes a risk of not recovering it, the attorney can charge a contingency fee, normally 1/3 of the value of the estate that is recovered.
Given above, it’s important to know the following. If the fee is hourly, how many hours have similar cases taken? If it’s a flat fee, is there a possibility that the attorney will charge an increase if the matter becomes more complicated than what has been foreseen? Also ask about an estimate of court fees.
Ultimately, an experienced attorney should be able to adequately answer the above questions in order to help you navigate the process of settling the estate of a deceased loved one.
If you are looking for a probate attorney, we at the Law Offices of Albert Goodwin will be happy to answer all of your questions. You can reach us at 212-233-1233.