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If you’ve had a death in the family, chances are, you might be facing probate. Probate is a formal legal process that recognizes whether a will is valid and appoints an executor or personal representative to administer the estate and distribute assets to intended beneficiaries.
Probate frequently occurs when real estate and real property are involved, regardless of whether the deceased had a will, said Dennis Brislawn, a probate attorney in Bellevue, Washington, who also practices in Alaska and Oregon. Other assets, such as a life insurance policy, are paid directly to a beneficiary without going through probate.
A probate attorney makes sure that all beneficiaries, creditors, and taxes are handled appropriately according to the probate laws and timeline of your state. (FindLaw has an extensive list of each state’s estate planning and probate laws.)
You may not need a probate attorney depending on your loved one’s estate planning and your own experience in such matters—but you do need to be legally authorized to dispose of the property.
“You shouldn’t be listing a house that you have no authority to sell. That’s kind of like fraud,” Brislawn said.
“I got asked that the other day: ‘Well, I haven’t been appointed yet. I don’t know if I’m going to be appointed, but can I go ahead and list the house?’ … That’s going to be a problem.”
Let’s walk through what a probate attorney does, and when you need one when selling estate property.
The probate attorney’s job and how it helps you
A probate attorney is a valuable resource who works with the executor of an estate, sometimes called a “nominated personal representative,” regarding tax deadlines, outstanding debts, and the distribution of assets, Brislawn said.
There’s a wealth of estate planning information available online and through local bar associations, but people’s comfort level with this varies. A survey from Caring.com found that only 4 in 10 American adults over age 18 had a will or a living trust (which does not involve probate). Those numbers rise as people age, with 81% of those age 72 or older and 58% of those ages 53 to 71 saying they had estate planning documents.
“People do their own probates for a loved one all the time, but there’s a mixed bag of results, and if you screw it up, you’re liable. If you blow a deadline, you’re liable. If you fail to do a tax filing or pay creditors, you’re liable,” Brislawn said.
“There are time frames that people have to be aware of; there are tax deadlines. Creditor notices. Veterans’ benefits. Medicaid reimbursement … There are a lot of issues that may or may not apply to a given case, and so understanding the context in which probate occurs is critically important.”
Probate attorneys don’t just deal with residences. They also work with estates on investment properties such as duplexes, townhomes, and even commercial buildings. One of Brislawn’s clients has property that’s been operated for three generations as an automotive repair shop, which requires proper inspections and safety regarding oils, antifreeze, and other chemicals.
For a real estate agent such as Sue Smith, who specializes in probate and serves Arlington and northern Virginia, a probate attorney can provide direction, especially when multiple heirs disagree.
“They all have to sign a listing agreement. They all have to agree on me,” said Smith, an agent for 31 years.
Best practices and resources for finding a good probate attorney
Ask friends, neighbors, and other advisers—such as an accountant or a real estate agent—if they have additional referrals and can point you in the right direction.
Brislawn recommends meeting in person with attorneys who offer an initial no-cost consultation. “See if they’ll spend a little time to talk to you about the process and what they can do,” he said.
How probate attorneys get paid and how much they cost
Depending on where you live, probate attorneys are paid either hourly, via a flat fee, or through a percentage of the estate’s value as defined by statute. A lawyer may let you pick how she or he will be paid depending on the estate’s complexity.
According to Nolo.com, one of the leading websites for legal matters:
- Hourly rates can range from $150 to $250, depending on the lawyer’s training, experience, and the size of the law firm.
- As for a flat fee, about $1,500 is typical for a routine probate case.
If you live where probate fees are set by statute, costs can be higher. In California, according to the Koza Law Group of Carlsbad, the attorney, the executor, and any court-prescribed referees who appraise non-cash assets receive statutory fees calculated by a percentage of the estate’s gross value, such as:
- 4 percent of the first $100,000 of the estate
- 3 percent of the next $100,000
- 2 percent of the next $800,000
- 1 percent of the next $9,000,000
- 5 percent of the next $15,000,000
So an estate valued at $100,000 before any debts are paid results in a statutory fee of $4,000. An estate worth $1 million results in a statutory fee of $23,000.
Estates undergoing probate also must pay court fees and related costs, usually between $1,000 to $3,000, the Koza Law Group says.
Do you need a probate attorney to sell estate property?
An estate is required to go through probate if:
- There is no valid will to name an estate executor
- There are problems with an existing will
- When there are no beneficiaries
- When a valid will needs this process to facilitate paying debts and transferring ownership
Although each state varies, a good rule of thumb is that if a decedent owned land or had $100,000 more of assets, probate is required, Brislawn said.
You also can avoid the probate process if you’re the surviving spouse of the deceased in a community property state. However, if you’re a child or other relative of the deceased in this situation, you’ll likely be headed to probate court.
How can an agent who has probate experience help in selling estate property?
Regardless of whether you have a probate attorney, a real estate agent with experience in selling estate property understands how this differs from a traditional home sale. For instance, it’s common to register the death certificate with the county courthouse, check any liens, work closely with the title company, and ensure that the heirs have their paperwork in order.
“I always check the title in all situations,” Smith said. “We want to make sure that we have a will that matches the signatories. I’ve had cases where I’ve had multiple family members signing on behalf of the person who has passed away.”
All the heirs should feel comfortable with the agent and agree on what to do with the property. Smith said she’s worked with one group of siblings where one was designated as her liaison and another situation where five siblings all want to be involved. “I confer with all five by email, and we conference call. Technology has really created beautiful links.”
How you can assist the probate attorney and real estate agent
Although each situation is unique, the best approach is to realize that both of these professionals are here to help by answering your questions and guiding you through what needs to be done.
“A lot of people don’t know where to start,” Smith said. “A lot of times there’s uncertainty as far as who wants what.”
She comes prepared with recommendations for companies that will clear out a house entirely and have it professionally cleaned and staged before putting it on the market. She’s also sensitive to families who don’t want to go through that and would prefer selling the house as-is to distribute the proceeds as swiftly as possible.
“Things have to be ironed out before the listing starts. They have to work together,” Smith said. “During a real estate transaction is not a time to bicker about a price.”
As painful as losing a loved one can be, it’s vital for survivors to communicate with one another and the professionals who can assist them so that everyone’s wishes are heard and the deceased’s affairs are conducted properly.
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