Sep 19, 2022 - 10m read
What is the Role of a Probate Lawyer When Selling a Home?
When someone dies, the probate process can begin shortly thereafter. Probate involves legal proceedings for validating a will as long as the decedent has created a will. The purpose of probate is to make sure that the estate is properly settled. In the event that someone dies without having created a will, he or she will have died intestate, which usually results in the estate being sent through probate.
Anthony Reinoehl
Co-Founder
When someone dies, the probate process can begin shortly thereafter. Probate involves legal proceedings for validating a will as long as the decedent has created a will. The purpose of probate is to make sure that the estate is properly settled. In the event that someone dies without having created a will, he or she will have died intestate, which usually results in the estate being sent through probate.
Probate can be a lengthy and time-consuming process since the probate courts must make sure that all creditors are paid with estate assets and that the will is properly carried out according to the stipulations placed in the will by the decedent. If the decedent had a home when they passed away, this property would also be sent through probate before it could be sold.
The issue with a home going through probate is that the probate process can take a long time to be concluded. If you’re set to be the beneficiary of this property, the home could lose value from the time it enters probate to when it eventually leaves. If you want to sell a home that’s going through probate, it’s highly recommended that you get in touch with a probate lawyer. This guide takes a closer look at the role a probate lawyer takes when selling a home.
What is a Probate Lawyer?
Probate attorney are lawyers who have received a license in a specific state to assist beneficiaries or the executor of the will. While providing assistance, a probate lawyer can help you get an estate through the entire probate process without too many delays.
There are many services that a probate lawyer can administer, which include everything from identifying estate assets to paying all remaining debts that the estate has. The lawyer can also work to settle the estate in a manner that adheres to the guidelines stipulated in the will.
Probate attorneys have the qualifications needed to help people perform estate planning as well, which may be necessary to ensure that certain assets can be given to beneficiaries without needing to first be sent through probate. Keep in mind, however, that fees can be high for estate planning services like creating a will or setting up a guardianship.
Are Probate Attorneys and Estate Attorneys the Same Thing?
Before hiring a probate attorney, keep in mind that probate lawyers can differ from estate lawyers. While estate planning and probate attorneys work in the same field of estate law, you’ll find that there’s one notable difference between these two professions. Probate attorneys handle the estate administration process once someone dies. It’s possible for this individual to serve as the administrator or executor of the estate in the event that someone else wasn’t given this designation.
In comparison, estate planning attorneys work closely with living clients for the purpose of drafting living trusts, wills, powers of attorneys, and trusts. These attorneys can also help families navigate the eldercare planning process. Through this work, it becomes possible for people to lower the amount of inheritance taxes that will be collected once they pass away. As touched upon previously, it’s possible for a probate attorney to work as an estate planning lawyer as well. Some attorneys will specialize in just one of these areas of law.
What Does a Probate Lawyer Do?
Probate lawyers have many tasks that they must handle in the course of taking an estate through probate. These tasks can differ depending on the specific needs that the administrator or executor of the will has. During the course of taking an estate through probate, a probate lawyer’s duties can differ based on:
- If the decedent had a will
- How complex the estate is
- If there are any legal challenges from debtors or beneficiaries of the estate
When There is a Will
In the event that a will was made by the decedent before they died, the probate lawyer in charge of the estate can be hired to help the administrator handle the entire probate process. In this scenario, it’s common for the probate lawyer to act as a consultant who provides the administrator or executor with the advice they require to properly settle the estate.
If a challenge is made by a beneficiary that states they believe the will is partially or completely invalid, the probate attorney could choose to represent this individual during probate litigation. Keep in mind that probate litigation could also be sought if someone believes that the will was signed under duress or that the will was created under the influence of someone else. There are many different reasons why a will can be challenged. However, the majority of wills are sent through probate without issue.
When There is No Will
If the deceased individual didn’t create a will before they died, they are considered to have died intestate, which means that the state inheritance laws will dictate who inherits what. In the event that the decedent was married at the time of their death, it’s likely that the decedent’s spouse will receive half or all of their property.
In this scenario, the estate administrator and the probate lawyer will be tasked with adhering to state intestacy laws when distributing property. Even if the deceased individual said something about their estate when they were alive, these statements must be turned into a written document in order for them to be granted.
The probate lawyer can help someone who was close to the deceased individual become the estate administrator if no previous administrator was assigned. If a relative wants to become the administrator for the estate, they will need to obtain “renunciations” from any other relatives that the decedent had. Keep in mind that renunciations are legal statements that allow people to renounce their rights to effectively administer the estate. Probate attorneys are able to file renunciation statements directly with the probate court.
Selling to CC Capital
Here at CC Capital, our goal is to help make the home-selling process simple and straightforward regardless of the age or quality of your home. If your loved one has recently passed and has provided you with a home as part of their estate, we can assist you in selling this home while being able to avoid the high costs and ample stress that comes with managing probate titles and negotiations.
Once you contact our team at CC Capital, we can tour your property, give you an offer, and pay you in a matter of days. If you’d like to sell to CC Capital, call us today to get started.
Do You Need a Probate Lawyer?
There are times when it may be necessary to retain the assistance of a probate lawyer. Whether or not you require help from a probate lawyer depends on numerous factors, the primary of which include:
- What kind of estate plan was created by the decedent?
- How complex are the state laws where you live?
- What is the total size of the decedent’s estate?
- Did the decedent have a will and/or trust?
- How complex are the beneficiary and asset designations?
- Do any beneficiaries want to challenge the will and any statements within?
The answers to these questions should help you determine if a probate lawyer is necessary for you. If the decedent had a will, probate is likely necessary. Keep in mind, however, that a legal trust account can be used to make sure that some assets don’t get taken through probate.
How Much Do Probate Lawyers Charge?
If you believe that you need to hire a probate lawyer, you should know how much these lawyers typically charge. Probate lawyers usually cost anywhere from $2,000-$10,000 depending on the complexity of the case. These lawyers can charge clients with one of the three following payment methods:
- A flat fee
- An hourly rate for their services
- A percentage of the estate’s total value
The amount you end up paying for a probate lawyer also depends on the experience the lawyer has and the standard rate for where you live.
What Questions Should You Ask a Probate Lawyer?
When you’re hiring a probate lawyer, there are some basic questions that you should ask to make sure you’ve made the right hiring decision. These questions include:
- Do you specialize in estate planning or probate law?
- Have you handled cases like this before?
- Will you personally handle my case?
- What services can you provide?
- How will I need to pay?
The time it takes for an estate to get through probate largely depends on the size of the estate and the number of challenges that potential beneficiaries make. If an estate is relatively small and no challenges are made, there’s a good chance that the probate process can be wrapped up in around 2-6 months. If you’re getting ready to go through probate and want to sell a home from the estate, this can be done at any time. In this scenario, hiring a probate lawyer may be necessary to ensure probate goes forward without issue.
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