It is said that two things are guaranteed in life: death and taxes. Probate paralegals definitely deal with death and may deal with taxes. This article will review the probate paralegal job, the probate paralegal job description, look at the probate paralegal salary and consider probate paralegal duties.
- 1 What is Probate?
- 2 Probate Paralegal Job Description
- 3 Probate Paralegal Salary
- 4 Probate Paralegal Duties
- 5 Can a Paralegal Draft a Will?
What is Probate?
Probate is the process by which the assets of someone who died are collected, valued, and distributed to creditors and heirs.
Probate Paralegal Job Description
The probate paralegal either supports an attorney who has a practice that includes probate, or has an independent practice of some sort. The probate paralegal drafts wills and the pleadings necessary for probate, gathers information about assets, interfaces with heirs and arranges for necessary publications or investigations.
Probate Paralegal Salary
While their salary survey was taken in 2007, meaning the data is probably out-of-date as far as actual salary, Paralegal Today’s salary data showed that of twenty-four specialties, estate, trust and probate paralegal salaries were fourth lowest. While tax paralegals averaged the highest income at $67,500, the average probate paralegal salary was $39,750. At that time, the overall average salary of paralegals employed by law firms was $51,686. Of course averages are made of those who make more and those who make less. As a general rule, the larger the law firm, the higher the salary. Since probate is an area of law that touches most ordinary people and is paid for by ordinary people, it is often practiced by solo attorneys in small offices.
Probate Paralegal Duties
Preparing Estate Plan Documents
Hopefully the probate process starts when the future decedent (legal term for dead person) comes into the attorney’s office to have a will prepared. Usually clients are given a questionnaire to complete prior to coming into the office. At the initial meeting, which it may be part of the probate paralegal’s job to attend, the attorney will review the client’s answers to the questions and make recommendations about how to accomplish the client’s goals. For example, a parent may want to leave money equally to all children, but may be afraid doing so would make a handicapped child ineligible for government assistance. The attorney would advise the parent about the types of trusts that could be used for that purpose.
Once the attorney has decided what types of documents the client needs, the paralegal will often be the one to take the information from the client questionnaire and transfer it to the forms the attorney uses to prepare the initial draft of the documents. If the paralegal is a notary, he or she may be asked to notarize the will after the client signs it. Even if the paralegal is not a notary, she or he may be called upon to sign the will as a witness.
Documents prepared at this time include wills, powers of attorney, living wills, and various types of trusts.
When Someone Dies
While the precise procedure varies depending on the state in which the decedent lived and whether or not he or she had a will, the basic probate procedure is to file initial paperwork with the court, prepare a list of the assets, notify all the heirs, and then prepare the documents which distribute the assets. Most of the time, most of this work is routine; however, if an heir or potential heir is not happy with the proposed distribution, litigation can follow. Probate attorneys, and their staffs, have to be careful to document all transactions and all communication with heirs.
When someone first comes into an attorney’s office following the death of a relative or loved one, the attorney will gather what information she or he can about the deceased and his or her family and will review any will the person has. The “reading of the will” seen in so many movies no longer happens; it may have been done in the past when it could be assumed that some of the heirs were unable to read the will. Today, one of the duties of a probate paralegal is to send copies of the will and other probate documents to the people named in the will and to other people the attorney believes should have a copy of it. After the initial meeting, the attorney will file papers with the court getting the court to name the executor/executrix or administrator of the estate (the difference is that an executor/trix is named in a will, whereas an administrator does the job if someone dies without a will). This is a routine document that is often drafted by the probate paralegal. An order, generally called “Letters Testamentary” is issued by the court giving the executor or administrator the power to conduct business for the estate. At this time the will is also filed into the record of the court.
Notifying the Heirs
In the vast majority of cases, people leave their money to their children and those children are the ones who hire the attorney. In other words, there is no need to find anyone. However, in cases where the heirs are nieces and nephews or long-ago friends, then it may be a probate paralegal job to make sure the list of heirs is complete and to compile their contact information, and to gather documents proving the heirs are who they say they are (birth certificates). An example of this would be a will of a very old person who leaves his property to his siblings or to their descendants, per stirpes, which means that if an heir died before the person who made the will, that persons descendants inherit his share. If two of the four siblings to whom the decedent left his property have died and one of one sibling’s four children have both died, along with two of the three children of the other sibling, the paralegal may need to track down six or more people who may barely realize the others exist.
The purpose of probate is to allow creditors to assert claims against the estate. The first thing done with any money any people have when they die is to pay any outstanding bills. The executor (usually meaning the attorney hired by the executor) is supposed to notify known creditors and see that they are paid out of the estate. In many states, it is required that a notice be published in the newspaper that the person has died and the estate opened. The publication date sets a deadline for creditors to make their claim known. The paralegal may draft this notice.
Compiling the Assets
The amount of work involved in this varies depending on the assets of the deceased and whether the executor would rather do the work or pay the attorney or paralegal to do it. It may be necessary to contact brokerage houses and banks to transfer the assets into the name of the estate, and writing those letters may be a probate paralegal job. It may be necessary to have personal property like antiques or automobiles appraised and the probate paralegal may arrange for that to be done. In the end, someone needs to compile a list of everything the decedent owned (though things like ordinary household good are usually just lumped together as “household goods”.
Distributing the Assets
Once everyone has been notified, and the prescribed time has elapsed, the attorney will ask the Court for an order distributing the property in a way that comports with the will and with any specific requests of the heirs (Tom will take the blue car, Jim gets the boat and I get the antique furniture for example). The probate paralegal may prepare the initial draft of these documents.
Can a Paralegal Draft a Will?
A probate paralegal can and often does prepare the initial draft of a will. However, like all work done by paralegals employed by attorneys, the responsibility for that work lies with the attorney, not the paralegal. Sometimes when people ask “ Can a paralegal draft a will? ” what they mean to ask is if it is necessary to involve an attorney or if a paralegal who does not work for an attorney could prepare a simple will for them.
In most states, paralegals are allowed to help people fill out forms but are not allowed to advise which forms are needed or whether the forms selected by the client will accomplish what the client wants to accomplish. Giving that sort of advice is considered to be giving legal advice, which only attorneys can do.
One exception to that rule is that in Louisiana, a Notary Public can give advice about notarial forms, and wills are notarial forms. To become a Notary Public in Louisiana a non-attorney must pass a very difficult examination.
Paralegals who enjoy helping people at difficult times in their lives may enjoy a probate paralegal job even though a probate paralegal salary isn’t the highest in the industry.