Typically, you are not going to hire a probate lawyer until a loved one passes away. The question is better tailored, how soon after a loved one passes away should I hire a probate attorney?
I recommend as soon as things settle down after the death and you have an idea of the decedent’s assets, that is a good time to at least speak to a probate lawyer to see if probate will even be necessary. If there aren’t enough probate assets, then there are other ways of transferring a decedent’s property instead of going through probate.
If probate is required, the family cannot do anything with probate assets until an executor/personal representative is appointed by the court. So the first step will be to determine if your loved one’s asset is probate or non-probate property. A bank account is probate property if there is no beneficiary listed. The same is true with life insurance and retirement funds. If there are beneficiaries listed on the insurance for retirement accounts, these are considered non-probate assets and the funds will be distributed according to the beneficiary designation.
The same is true with real property. If the decedent owned a home or condo and it was in his/her name only at the time of death, then the property has to be transferred through probate. On the other hand, if there are joint owners depending on the way the property was titled, it may or may not have to go through probate.
Once you determine the amount of probate assets, the personal representative named in the will or an interested relative if there is no will, petitions the court to be appointed to act on behalf of the decedent’s estate. This person, the executor or personal representative will be appointed by the probate judge through a document called letters testamentary or letters of administration. This document gives the executor the legal authority to act on behalf of the estate. Nothing can be done with probate property until letters testamentary are issued.
The quicker the family is able to sort out the probate from non-probate assets, the quicker an estate can be opened if necessary. Many times, we meet with loved ones shortly after the decedent passed away because family members are coming into town for the funeral. Even though you meet with a lawyer immediately, sometimes it’s in the beneficiaries’ best interests to wait for a period of time before opening an estate. This is true if the decedent left a lot of debt or creditors. You may ask why; the answer is for a another frequently asked question. However, the simple answer is that a creditor has a limited period of time to act on the debt otherwise they lose their ability to collect the debt.
If probate is going to be necessary, it’s generally a good idea to hire a probate attorney to help you through the process. Probate laws can be complex and confusing and there are a bunch of hoops that families must jump through to get property sold or transferred. There may be issues with personal tax. For most families’ estate taxes will not be an issue because the current federal estate and gift tax exemption is over $11 million.
Is there a best time to hire a probate lawyer? Not really. But timing wise, should talk to a lawyer initially, and then you all can decide the best time to hire the attorney to assist you.