One of the most intimidating situations you can find yourself in when it comes to the world of attorneys and the law is the prospect of having to speak with a lawyer about drafting a will or creating a trust for you and your beneficiaries. It’s not that talking to an attorney is especially worrisome, but the reality is that you may not know what to ask. On top of the planning and logistical considerations inherent in drafting a will you have the cost considerations as well. Like anything else, you want the service to be performed adequately but do not want to spend an arm and a leg. Being on a budget means taking into careful consideration all the factors associated with hiring an attorney and then making a good choice.
In my experience, this begins and ends with interviewing as many attorneys as you can to find out which one suits you the best. Don’t fool yourself into thinking that every attorney is created equally or that your circumstances don’t merit a great deal of thought and consideration regarding the hiring of a lawyer. Your life and your family’s well-being matter tremendously and you should not commit to hiring an attorney before performing some level of due diligence. It is good to have a plan, but it is better to be able to execute that plan.
In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss what it means to develop a plan and then execute on it in terms of hiring an attorney. Many times, this would be the first experience you would have ever had with speaking to an attorney about a legal matter. Do not underestimate the importance of this conversation in terms of learning how to think about a case and developing the strategy that we have been talking about already today. My intent with writing this blog post is to be able to provide you with questions that you can approach an attorney with when you were meeting with one for the first time.
Additionally, I would like to provide you with some information about how probate and estate planning attorneys charge based on what you are likely to encounter from lawyers here in Southeast Texas. As we talked about earlier in this blog post when you are on a budget as far as hiring a lawyer you want to make sure that the lawyer you hire can perform the services you require to add a price point that is agreeable to you. Ultimately, this means understanding the costs and fees in advance so that you are not surprised by anything that occurs later on with the case.
Start with the basics and find out what probate even is
Probate is a weird word that we don’t run into often. However, if you are the executor of a person’s estate or have a loved one who just passed away and is a beneficiary of theirs under a will then you need to acclimate yourself to what probate is and what purpose it will serve for you and the person who has passed away. I find that a lot of times people in your position may just “go with the flow” and act as if they are aware of every single issue in the case but that is not ideal. Rather, I would recommend knowing absolutely what the basics are before going forward with any other questions to a probate lawyer.
Probate is a process whereby a legal case is filed regarding a deceased person’s estate whether that person has a will or dies intestate, or without a will. The probate process will ensure that the will drafted by a deceased person is authenticated and declared to be valid. This is important if someone challenges the validity of the will on some legal ground or if the deceased dies with multiple wills to their name. In that case, you may be in for a bit of a ride to determine which will be the correct one and then determine what they will state as far as how beneficiaries are named and what property should be distributed to each at the time of their passing.
Going through the probate process means that any taxes, fees, and importantly debts associated with the estate are paid. An important factor in this discussion is that all the property that you would stand to receive as a beneficiary or distribute as an executor would not be in play until and unless all debts associated with the estate are paid. Those creditors would have an opportunity to make themselves known during the probate process and the court would oversee the payment of any debts owed to them. Once those creditors are paid then the property could be distributed according to the terms of the will or the laws of Texas on intestate distribution.
How unique is your case?
Once an attorney has been practicing for a long enough period he or she starts to run into patterns and cases that start to look very similar to one another. It becomes simpler to identify problems and issues. Helping people like you who need advice and guidance in the world of Texas probate and estate planning matters becomes easier. As a client, you get more bang for your buck from having worked with an attorney. It’s a win-win all the way around.
One of the questions that I would want you to ask an attorney that you are interviewing with is whether that lawyer has represented a person like you before. This is a relevant question to ask given that you want your attorney to have worked with people like you before in circumstances like yours previously. This is an important consideration for you when hiring a lawyer. Depending upon the circumstances of your case you may need a lawyer who has extensive experience in a certain area.
One of the benefits of hiring the Law Office of Bryan Fagan is that we have over ten attorneys on staff who are experienced in handling a wide range of probate and estate planning issues that may be relevant to you. Additionally, as a client of our law office, you have the option of being able to choose to work with any of our lawyers. You will also have the benefit of our staff of paralegals, legal assistants, and support staff who come to work every day to serve people just like you. A quick phone call to our office can make a tremendous difference for you during an important time in your life.
How long can you expect to be involved in your probate case?
In addition to the money question that I posed earlier in today’s blog post, you will likely also want to know more about how long the process can take. After all, time is money. Unfortunately, there is no set amount of time that a probate case can tend to take. You should expect your case to take more than a couple of months but less than a year. Complex estates may end up taking longer. The number of assets and creditors involved in the case will be relevant factors to consider. Additionally, the number of potential beneficiaries/heirs involved in the case and their willingness to accept the will submitted to the probate court will also go a long way towards determining the length of the case.
From my experience, the toughest part for many people in your shoes as far as the length of a probate case is that you may need access to the potential property that would be yours under the will right now. Imagine a scenario where you were about to start college or were planning a move but needed some money to help you begin that process. Having a case be held up in probate can be an extremely frustrating thing to go through. So, if you are planning on getting access to funds and property through a will and that will be going into probate you should not bank on receiving any money for at least a few months in most cases.
Where are probate cases filed?
The correct place to file a probate case is in the county where the person in question had established their residency. If you stop to think about it this makes complete sense. A person can be young and healthy and then be on a vacation where they pass away in a car accident out of state. If you had to file a probate case in a random state, then that would be arbitrary and time-consuming overall if you had to travel out of state to file a probate case. Residency in Texas typically means that you have lived in Texas for at least six months and in a particular county for at least 90 days.
What potential problems could occur in your probate case?
The probate process, like all types of legal cases, can take several twists and turns that make it difficult to predict how a case will turn out. In most cases, a probate matter will be straightforward. In some situations, if you are a potential heir of a deceased person, it can be difficult to locate other potential heirs of the person who passed away. In situations like this, the court may appoint an attorney ad litem who would charge of locating these persons and informing them that an active probate case is ongoing. This takes time.
Another situation that could come up in your case is a beneficiary or heir challenging the will that is going through probate. There are certain requirements for a will to be declared valid in Texas. Having two witness signatures, being notarized, having the document be titled as the last will, and having a signature are all examples of necessary elements of a valid will in Texas. If the deceased person’s will lacks one of these elements or if there are enough questions about any of those elements then you can expect that an heir or beneficiary may challenge its validity.
These types of scenarios show you all the more reason why you need to have an experienced probate attorney by your side to guide you. Whether you are an executor of a will or a potential beneficiary who needs to challenge the will of a loved one that you believe has presented a will that may be invalid then you need to consider what can be gained by you having an attorney advise you throughout this process. It is not easy to have to deal with a probate case. However, having an attorney to lean on can make a tremendous difference for you and your family.
One of the important parts of hiring an attorney is being able to make sure that you can effectively communicate with him or her. Having a lawyer who you cannot get a hold of very easily is a major issue. Our office has a large support staff and attorneys who answer calls and call clients back as soon as possible if they are in court or out of the office. This can make a big difference, as well, for you when it comes to your case. I recommend speaking with your attorney at the beginning of a case to determine how you would like to communicate with one another. You can determine whether phone calls or emails work better and the best times to reach one another. You may even be able to set up a weekly phone call at a mutually agreeable time to stay current on what is going on in your case.
Does all the property of the deceased person need to go through probate?
Not all the property that is contained in your loved one’s estate will need to go through probate if he or she does not have a will. Community property items do not need to go through probate if your loved one dies without a will. Community property is presumed to be all the property you own at the time of your death or at least the property that you acquired during your marriage. If you or a loved one passes away without a will and your spouse is still living, then that property doesn’t need to go through probate.
Next, if you have a retirement plan or account where you can designate a beneficiary then that property would not need to go through probate, either. If your brokerage firm is online, then it may pay for you to go to that website to determine who is named as your beneficiary. Better to do this now than to pass away and find out that an ex-spouse is listed in that slot, for example. Planning property can put you in a position to succeed in having property not have to go through probate.
Another idea to keep in mind is that if your estate is small enough and/or you do not have any debts at the time of your passing it may not even be necessary or appropriate to go through probate. Of course, the person executing on your will would need to be sure of this. Additionally, if your spouse has recently died with or without a will you would need to be sure (very sure) that he or she did not have any debts that you were not aware of. Life insurance proceeds are another asset that does not go through probate. The rule above that applies to retirement accounts with beneficiaries would apply here.
What does a probate attorney charge for representing you in a probate case?
Finally, let’s discuss what a probate attorney would charge to represent you in a probate matter. We’ve walked through some of the more common and complex situations that you may find yourself in when it comes to probate. Some probate attorneys charge by the hour. Some probate attorneys charge a flat fee where they will agree to represent you for a certain amount of money. This puts the lawyer in a position where he or she could end up doing a lot of work after a case goes longer than expected. It could also result in you paying more in fees for a case that ended up less complex and time-intensive than previously thought.
What you can do is to interview attorneys and get statements from them in writing about fees and costs. Many lawyers will include this information in their contracts so that you can review the figures and ask questions as soon as you can. From there you can position yourself well no matter what probate scenario comes your way.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to ask questions and receive feedback about whatever probate-related circumstances come your way.
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