Probate lawyers handle the legal requirements of probate and administration. This can include filing the will, gathering assets and paying debts, distributing assets according to the terms of the will, and filing an inventory.
Probate lawyers are also often involved in estate planning matters. You may need an attorney to help you set up a revocable living trust or prepare other documents necessary for your estate plan.
The role of a probate lawyer
A lawyer for probate is a legal professional who helps clients navigate the often confusing and complex process of probate. This process involves gathering, identifying, and distributing a deceased person's assets to his or her heirs.
Probate is a court-supervised process that allows an estate's executor (the person named in the will to carry out the deceased person's wishes) or personal representative (a default executor appointed by the court if there's no will) to collect, inventory, and manage assets after someone dies.
The probate process can be long and complicated, especially if there are multiple beneficiaries or if there are disputes over property ownership. A probate lawyer can help families through this difficult time by:
Helping heirs understand how they might be affected by the death of their loved one;
- Providing guidance on how to file claims against an estate;
- Explaining what happens during probate administration;
- Helping heirs safeguard their rights as beneficiaries;
When is probate litigation needed?
Probate litigation is generally not needed unless there are disputes between beneficiaries or creditors of the estate. Examples include:
- Creditors claim that they should be paid before other beneficiaries. For example, a creditor may claim that he loaned money to the decedent shortly before his death and therefore he should be paid back before any other creditors are paid. The creditor may also claim that he loaned money to an heir who was not legally obligated to pay back this debt if it was not properly disclosed on a beneficiary’s statement of assets and liabilities.
- A beneficiary claims that another beneficiary has received more than they should have under the will or trust instrument or perhaps even something outside of what was set forth in the will or trust instrument altogether (such as cash gifts).
- If there is more than one beneficiary named in a will and there is disagreement over who should receive what amount.
- If someone is challenging the validity of a will. This could be because they believe that they were treated unfairly by the deceased, or if they want to contest their inheritance on the grounds that they were not close enough to the deceased to be included in their will.
- If there is no will at all and an estate must be distributed according to state laws. In these cases, it is up to family members or acquaintances of the decedent to negotiate amongst themselves how better to distribute the assets. This can often lead to misunderstandings and disagreements which can only be resolved through court proceedings.
Probate lawyers are everywhere. And yet, many people have no idea what they do or how they differ from estate lawyers. If you're one of those people, this article can help. It's written in a simple, non-legalese way, and it discusses the basics of probate law to help you learn more about this practice area.