Reasons To Hire a Lawyer For Probate
This column is a follow-up to a prior one on February 1, 2022 titled “Do You Need To Avoid Probate in Pennsylvania?” A similar and related question is whether you should hire an attorney. There are several reasons why often the answer is “yes” and not just based in self interest. Here are some reasons why you would do better with an attorney than without one.
- An experienced estates or elder law attorney can tell you when you do not need to probate. It may seem counterintuitive but an attorney who is considering your best interests can sometimes tell you that you do not need to probate the Will of your deceased family member or friend. Remember, as I stated in the prior column, avoiding probate does not necessarily mean avoiding taxes and you might still need to file for Inheritance Tax only. However, especially when a spouse is the only beneficiary and all assets are either jointly titled or will go by beneficiary designation (such as life insurance, IRA’s and 401(k)’s that name the spouse alone), a first appointment might only involve completing beneficiary forms and advising financial institutions of your spouse’s passing.
- Lawyers who are familiar with estate administration can tell you about exemptions, discounts and deductions from the estate. If you handle an estate on your own you can miss items that can reduce the estate’s Inheritance Taxes. Every reduction in Inheritance Tax can increase the amount available for distribution to beneficiaries. A competent elder law or estate administration lawyer can discuss and use where appropriate such provisions as the family exemption, benefits to prepaying Inheritance Tax even where the tax return is not yet complete, and listing of itemized deductions. Deductions can include, by the way, the attorney’s fee itself and executor’s fee among others.
- Especially where there is more than one beneficiary, a competent elder law or estates attorney can act as the Executor’s best defense in advising and describing the process. An attorney familiar with process and procedures can answer questions and advise what to expect. One major time delay in Pennsylvania, for example, is the time it takes to receive approval of the Inheritance Tax Return from the Department of Revenue. Explaining what is happening is important. However, time delay is just one consideration. There are benefits you should know about. If, for instance, by reason of health or distance the Executor has difficulty attending probate, the Register of Wills now can in some cases accept probate remotely. Although a major convenience, proper procedures need to be followed. There are also COVID specific procedures today in Register of Wills offices throughout Pennsylvania including, as one example, scheduling probate filings in advance. Finally, where there are disputes among beneficiaries regarding distribution an experienced attorney can explain and expedite the process. A final Family Settlement Agreement is needed in most cases where agreement is reached. That is a legal document.
- An elder law or estates attorney can advise regarding the Executor’s fee. Executors often want to know how much can be charged for the work they perform. An attorney experienced in the field can help with this decision.
- A probate attorney who also has real estate experience can help with the sale of the residence or other property. Sometimes Executors who are not represented by an attorney in the handling of the estate do not realize title insurance requirements generally demand proof that Inheritance Taxes have been paid and/or the Inheritance Tax return filed before settlement can be concluded. Failures in this regard can hold up the settlement. Also it is important to know legal rights in connection with the sale. We review Listing Agreements and Agreements of Sale and try to avoid escrows wherever possible. It is also important to know that inherited property typically receives a step up in basis for capital gains tax purposes.
- Where health issues or creditor issues are involved or property disputes a knowledgeable attorney can assist to sort through the issues to conclusion. Sometimes substantial medical bills or health insurance claims need to be resolved. Some estates involve Medicaid claims. Sometimes clients need to know their rights regarding refunds from senior communities including Continuing Care Retirement Communities. Many Executors become involved in these issues not realizing how they relate to settlement of the estate. Competent help can make a difference.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.