Is a probate attorney needed? How much will the probate attorney cost? These are just a few of the factors to consider when hiring a probate attorney.
Most probate matters can be handled without a probate attorney. There are some judges that require a probate attorney.
Even when required, the personal representative has the ability to choose the probate attorney. In fact, the probate attorney will represent the personal representative in their capacity as the personal representative. The probate attorney does not represent the personal representative as an individual.
The probate attorney also does not represent the estate. In fact, the probate attorney cannot represent the estate as the estate is not a legal entity. This can be confusing given that Federal tax law treats the estate as a separate legal entity for tax purposes.
It is advisable to hire a probate attorney for more complex estates, such as estates involving an ongoing business that the decedent owned. It is also advisable to hire a probate attorney if there are likely to be family disputes or challenges involving the estate. A probate attorney should also be hired if the parties do not have the time or inclination to deal with the probate process on their own.
Probate attorneys generally charge for their services. They are able to set their own rates, but the attorney professionalism rules say that the fee has to be reasonable.
Whether a fee is reasonable depends on the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, and whether the attorney is foregoing other work to work on the client’s matter.
For dependent administrations, the court has the ability to determine whether attorneys fees are reasonable. Many courts set a range of hourly rates that are considered reasonable. These rates are often set out in written policies and available on the court’s website. For example, the Houston probate courts provide a range of rates based on the attorneys experience handling probate and guardianship matters. The top rate is currently $350 per hour.
The court does not have this power in independent administrations. Thus, attorneys and their clients are free to negotiate any reasonable amount and fee structure, such as hourly, fixed, or contingent fees.
While the attorney professionalism rules generally do not allow attorneys to say that they specialize in certain issues or matters, probate attorneys generally do focus on certain issues or matters. For example, the attorney may focus on estates that will be contested, estates that involving minor heirs and guardianships, estates that have significant business or investment assets, estates that have significant tax issues, etc. It can be helpful to hire a specialist probate attorney for these non-standard estates.
Having hired your probate attorney, the next step is to think about the actions that need to take place before you can actually start the probate process in court. This is our next topic. Click here to continue reading. >>>>
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