How Probate Works. A Guide for Executors, Heirs, and Families.

E198 How to Change Your Probate Lawyer


You may be surprised to learn that we receive requests quite often from people who wish to change their probate lawyer. This was the exact situation one of our clients was facing recently. “Linda” started her probate case with another lawyer but realized along the way that he was not doing a good job. So, she reached out to us to take over the case. Here’s a look at how that works.

First, from our perspective, changing firms is a double-edge sword for a lawyer. As a rule of thumb, attorneys do not particularly like to take clients who have fired their previous attorney, as it could potentially be a red flag. On the other hand, if a client has been legitimately been deprived by a past attorney, they are grateful to have help and are a pleasure to work with, as is the case with Linda.

“Linda’s” story

Linda hired a “flat-fee” probate lawyer, which she thought was a great deal. However, after 9 months, Linda realized the lawyer had not done much. She also learned he didn’t really know what he was doing. For example, he hadn’t notified any heirs, collected any of the preliminary financial documents, or even gathered the basic information, which is typically what seasoned probate attorneys do right away. That led Linda to seek out another lawyer. Not only did she want a new lawyer to help her, but she also wanted to recoup as much of her “flat-fee” as possible. After all, not much had been done in 9 months.

How To Change Lawyers In The Middle Of A Case

How To Change Lawyers In The Middle Of A Case

If the previous lawyer hasn’t done any work on the case yet, then it is pretty easy. You can request they stop working and hire someone new. However, it gets more complicated if the attorney has spent any time on the case, which can include opening the case and corresponding with the court. If that’s the case, you will want to decide wisely – even if you can’t stand working with a particular attorney, if you are close to the finish line, it may be in the best interest of the case to see it through to the end. You will have to weigh it out.

How To Transfer Case From One Lawyer To Another

If the case has progressed to the point of filing documents with the court, the attorney who filed the documents is called the “Attorney of Record.” This means they are your official lawyer in the eyes of the court. If this is the case, you simply can’t change who represents you without the approval of the court. The court requires documentation to change attorneys at this point, essentially granting permission to change attorneys. This document must be signed by all parties, including yourself, the previous attorney, and the new attorney.

This puts you in a position of needing something from the previous attorney. Therefore, it’s not advisable to air your grievances or place a nasty phone call to their office (which is actually never a good idea). Even though you may be upset with them, you need that document to be signed.

One thing to keep in mind is that an attorney may elect to not sign the document until all invoices have been settled. You may have to pay the balances in order to move on. Although you may disagree with the invoice, in reality, if they have done the work, they should be paid. You have to weigh out if paying the outstanding balances, even though they didn’t do much work in your opinion, is worth it to change attorneys.

How To Transfer Case From One Lawyer To Another

Another reason to keep the peace is for the transition to be smooth. Your new attorney will need to get the files from the previous attorney. While some records can be obtained from the court, the previous attorney may have originals that is easier to get from them then to retrieve otherwise.

Are Lawyer Retainer Fees Refundable?

The short answer is technically yes, but in reality, they are usually not. In New York and in other states, attorneys are not allowed to charge non-refundable retainers. Although found in most attorney agreements, it is not usually permissible. Unless you change your mind the day after you send the check, most lawyers would have done enough work to have earned the retainer. For example, opening the file, reviewing the documents, gathering preliminary documents, calling the court, etc., adds up, which may use most if not all of the retainer. Lawyers are definitely entitled to fees for the work they do, even if you are not satisfied with their work.

Are Lawyer Retainer Fees Refundable?

If you are considering changing attorneys, you may find that the cost of keeping your current attorney outweighs starting over with a new attorney. Alternately, depending on the particular situation, it’s worth it to start over. As with any decision, weighing your options before making the switch is important.

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E196 What Happens If Someone Doesn’t Want Their Inheritance

Believe it or not, we have clients to do not wish to accept their inheritance. Although extremely rare, there is actually no legal obligation to accept, and it’s completely okay to decline. There are often situations where it is best.

In a recent case, our client “Evette” lost her long-time boyfriend. They were never legally married but were practically husband and wife. Everyone knew them as a couple, including their family and friends. In this case, Ed did not have a Will. As we have discussed previously, non-married spouses do not legally inherit from the deceased partner. Under the laws of New York, Ed’s biological adult daughter would receive 100% of his estate. The daughter, acknowledging that Evette was for all intents and purposes the spouse, has opted to include Evette in the estate distribution.

Disclaimer of Inheritance Rights

Disclaimer is a fancy word for not accepting and forfeiting your share of the inheritance. In Evette’s example, the daughter could simply say “I don’t want anything to do with it. I do not accept.”

Disclaimer of Inheritance Rights

The pro is that the daughter signs one form and she is done with the estate. No one will bother her again. If you are estranged, which isn’t the case here, that may be the best route. This option is the least hassle, but it removes all control.

The con is that if you forfeit, you no longer have a say in anything. The default inheritance laws would kick in and the share would go to the next in line. In this case, Ed still has brothers, and by law it would go to them, which is not what he wanted.

Can I Give My Inheritance to Someone Else?

Can I Give My Inheritance to Someone Else?

Sure, you can give your inheritance to someone else, but only once you receive it, which could be months or years after probate starts. The drawback is that there is much uncertainly. In this case, the daughter will be waiting for quite a while to receive the funds. In that time, she can simply change her mind about giving a share to Evette. Additionally, the daughter will need to stay involved in the probate process, whether she wants to or not.

Transferring an Inheritance by Executing an Assignment

In this case, an Assignment of Interest is the best option. Here, the daughter will sign a document agreeing to assign a percentage of her share to Evette.

Transferring an Inheritance by Executing an Assignment

Instead of waiting to see if the daughter will actually share the inheritance with the girlfriend, this this formality creates certainty and can help eliminate any issues that could arise between a family.

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E191 3 Ways to Start Probate With No Upfront Fees

E191 3 Ways to Start Probate With No Upfront Fees


If you’ve done your research, you know that a good probate lawyer is not cheap. So how can you start your probate case even if you can’t pay now?

How much are probate attorney fees?

Lawyer fees for the simplest probate case start at $3,000. But probate is naturally messy, since is involves family, money, death, and high emotions.

So probate fees are usually more, sometimes tens of thousands of dollars!

source: https-::www.ft.com:content:14ea8e2a-0e47-11e7-a88c-50ba212dce4d

When to probate fees have to be paid?

Generally, lawyers require an upfront payment, or retainer, before starting work on your case. The upfront payment is usually a few thousand dollars, depending on the estimated total fees.

Many folks, understandably, just don’t have that money readily available, and ask “can probate fees be paid from the estate,” at the end?

Yes, but only under certain circumstance. Why? Because estates can be unpredictable, with many twists and turns. While you may feel certain that there’ll be plenty of funds to cover the lawyer fees, we’ve often seen:

  • Unexpected mortgages or debts
  • Unknown huge taxes due
  • Assets aren’t worth what you expected
  • Assets had a named beneficiary, and therefore not part of the estate

What to do if you can’t afford probate fees?

If you don’t have the cash on-hand to pay a lawyer’s retainer, here are some of your options to start your probate case now.

Deferred lawyer fee

Work with a lawyer who will accept a deferred fee (paid at the end, from the estate). If you’re able to find a lawyer to work with no upfront payment, expect some conditions.

For example, our office usually only accept deferred fee cases if you’ve also asked me to serve as your professional executor for the estate.

Contingent lawyer fee

Contingent fees are the ultimate “no win, no pay” arrangement. If your lawyer in unable to get your inheritance for you, then you don’t owe any fees. He only gets paid if he succeeds in getting your inheritance.

As you might expect, the trade-off is the fee will be higher than if you paid upfront: usually 1/3 of your recovered inheritance. But if you don’t have the cash to start your case otherwise, you’ll be glad this option even exists.

Contingent fee probate is limited to certain types of cases, such as:

  • Will contests
  • Proving kinship
  • Unknown assets

Request your free consultation

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”

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E189 Can an Executor be Out-of-State?

E189 Can an Executor be Out-of-State?


No, it’s not a good idea to have an out-of-state executor. Although it’s technically legally allowed, in reality an out-of-state executor causes tons of problems.

Banking Problems

Opening the estate account

You probably think opening a bank account is a piece of cake. And you’d be right, if you were opening an account for yourself, personally.

bank kyc

But banking for an estate is a different animal. But an estate account has tougher “know your client” rules, and the executor often must meet with a banker in person, at a branch, to open an estate bank account.

Troubleshooting problems

When you have a problem with your personal bank account, these days you have limitless customer support options. Website, email, live chat, tweets, or call or walk in.

But with estates, you usually must walk into a branch and speak with a banker to get that missing statement or re-issue that 1099. And that can be a pain for an out-of-state executor.

Selling Real Estate

Clean out

Yes, cleaning out the home or apartment is part of the executor’s duties. For an out-of-state executor, this can mean several trips in and out of New York to supervise the clean out.

Closing

source: https-::www.c21redwood.rocks:blog:tag:highland-title

New York is one of the few states where most real estate closings are in-person, with all parties sitting around a table for a few hours.

Yes, it’s sometimes possible to close with an out-of-state executor by signing and FedEx-ing the documents. But if any problems popup (as they often do with estate sales), it’s better to close in-person, so the lawyers can troubleshoot any problems in realtime, and avoid an aborted closing.

Minor stuff (mail forward, etc.)

There are countless small executor tasks to get the home ready for sale. Forwarding the mail, small repairs, returning extra keys, conversations with the super, etc. All much easier to handle with a local, New York executor.

Travel restrictions

travel restrictions

Sometimes an executor simply cannot legally enter the US:

  • Unable to get a visa
  • Immigration problems
  • Quarantine or other travel restrictions

If any of these apply, the heirs may be better off hiring a New York professional executor, rather than a non-New York person.

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E184 Why is Being an Executor Difficult_ The Statistics

E184 Why is Being an Executor Difficult? The Statistics


Here are the results of a survey and statistics to illustrate why folks think being an executor is so difficult.

Is being an executor difficult?

The average executor doesn’t think the job is particularly difficult to understand. But, they do think carrying out the role can be difficult.

statista

Source: https://www.statista.com/statistics/281604/difficulty-in-being-an-executor-of-an-estate-among-wealthy-americans/

Based on a survey by Statista, non-professional executors feel the most difficult parts of serving as an executor or trustee of an estate are:

Commitment of time required

Many tasks seem simple, and would be if you were doing them for yourself (closing a bank account, getting financial records, etc.). But many executors realize how difficult those tasks are with an estate.

Insufficient legal or financial knowledge

Yes, you can hire an attorney or CPA to advise on most matters. But what executors really want to know is: what are my chances of getting sued if I make the wrong decision?

Filing tax returns

Executors must get tax clearance, to avoid being haunted by the IRS later. This can frustratingly take months.

Managing disagreement among heirs

This is particularly awkward and stressful if it’s your own family. Thanksgiving gets even more awkward!

How much time does it take to be an executor?

According to a survey by EstateExec.com, the average non-professional executor spends 570 hours to settle an estate.

executor_effort_chart

Source: https://www.estateexec.com/Docs/General_Statistics

How long is 570 hours?

  • 71 full workdays
  • 14 full work weeks
  • 3 1/2 months of work

Make sure you’re ok with this level of disruption to your job or leisure time, before accepting executorship.

How long do estates take to settle?

On average, 16 months. In our experience, 16 months sounds low.

settlement_duration_chart

Source: https://www.estateexec.com/Docs/General_Statistics

Also be aware that it’s not a steady stream of work. Rather, there will be bursts of hectic activity, with long gaps of waiting in between.

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E182 3 Examples of How Co-Ops Are Worse (an Executor’s Perspective)

E182 3 Examples of How Co-Ops Are Worse (an Executor’s Perspective)


Most NYers know the deal with co-ops: they’s less expensive than condos, but they come with a lot of rules and headaches. Here are 3 real world examples:

  1. Last to unlock
  2. Quick to Sue
  3. Release of lien

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E180 Contingent Fee Probate

E180 Contingent Fee Probate


What do you do if you need a probate lawyer, but you don’t have the money now? Let’s talk about contingent fee probate.

  1. What are contingent fees?
  2. Some limitations
  3. Will contests
  4. Kinship
  5. Uncertain assets

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E175 Amateur Executor Bloopers

E175 Amateur Executor Bloopers


We’ll share a few real-world amateur executor bloopers (of course, anonymized to protect our clients’ privacy)

  1. Choosing a disappearing banker
  2. The case of the missing $10,000 check
  3. “Oh yeah, taxes!”

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E171 How Lockdowns are Affecting Probate

E171 How Lockdowns are Affecting Probates


An insider’s look into how the lockdowns are making probate even more difficult than usual. Even if lockdown over by the time this airs, probably lingering residual effects.

Today we’ll discuss how lockdowns are affecting:

  1. The courts
  2. Banks and brokerages
  3. Real estate
  4. The IRS
  5. Lastly, creditors

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E169 5 Tips to be a Great Probate Paralegal

E169 5 Tips to be a Great Probate Paralegal


For our paralegal listeners who want to add this practice area to their toolbox. For our clients, a sneak peek behind the curtain to see all that Janice does for you.

The 5 tips:

  1. Research, research, research
  2. IRS and taxes
  3. Use checklists
  4. Phone skills
  5. Learn your attorney

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