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Frequently Asked Questions About Wills & Probate

Frequently Asked Questions About Wills & Probate

In estate planning, wills and probate courts accomplish two tasks. A will ensures that a person's assets are distributed as per their wishes upon death. Probate courts make sure the deceased person's debts are settled, including taxes.

This article answers some frequently asked questions about wills and probate.

What are a probate attorney's responsibilities?

Some probate attorneys only take care of the administrative side of probate. This includes making sure the petition for probate is prepared and filed, assets are inventoried, debts are paid off and estate funds are distributed.

Other attorneys strictly litigate probate issues if someone contests a will. Probate litigators are familiar with laws associated with probate disputes. They know the ins and outs of probate court. They are familiar with estate planning practices. In addition, they are trial lawyers.

Some lawyers do both. When selecting a probate attorney, make sure the lawyer concentrates his probate practice on your specific needs.

What are wills?

A last will and testament is a legal document that explains what a person wants to do with his property and assets after he dies.

What is probate?

Probate is a court proceeding to oversee the settlement of a person's debts and distribution of their property to heirs, also called beneficiaries. Probate courts are found in every state. Through probate court:

  • Wills are validated
  • Estate assets are inventoried
  • Debts are paid off, including taxes and will-related expenses
  • Assets are distributed to heirs

With or without a will, most deceased people's estates will have to go through probate court. If there is a will, the court will ensure the wishes of the deceased are followed.

If there is no will, property will go through probate before it's distributed. The court will appoint someone to review claims against the estate, pay creditors and then distribute the remainder of a person's estate to beneficiaries according to state law.

How much do wills cost?

The cost for drafting a will can vary for many reasons, including:

  • The nature of a person's bequests
  • Where a person lives
  • The complexity of a person's estate

The size of the estate may also affect the cost of preparing a will. This is because you may want to make plans to help minimize taxes, including federal estate tax costs, as well as local estate and inheritance taxes.

A lawyer could also help establish workarounds to help reduce taxes. For example, a lawyer could help a person establish a family limited partnership to defray tax costs.

The time a lawyer spends on finalizing a will impacts its cost. Knowing how to distribute your estate before visiting a lawyer will save you time and money. The lawyer can then just point out potential problems with your final requests and help amend them.

How much does probate cost?

Probate costs vary from state to state. Generally probate costs are 3 percent to 7 percent of an estate's value.

Through probate, the executor will use money from the estate to pay for appraisals, court costs, surety bond costs, legal fees, accounting fees and personal representative fees.

Any disputes over an estate, litigation or the contesting of a will increases the cost of probate. The result: Decreased assets for beneficiaries.