There are many reasons to hire an attorney just as there are many specific areas of the law that require particular expertise. One of these areas is probate. Settling the affairs of someone who has died often requires a good deal of legal paperwork and, sometimes, court appearances. Probate lawyers, also known as estate lawyers, are the experts who assist with the probate process.
Probate lawyers are knowledgeable about applicable state laws regarding probate administration, as well as the court procedures common in their jurisdictions. Their skill and experience can be extremely helpful for anyone responsible for carrying out the wishes of a deceased loved one - especially for the person appointed by the probate court to be the executor, or personal representative, of the decedent's estate.
Since probate is a legal process subject to state law and supervised by the court, the personal representative is legally accountable and must manage all estate property honestly and responsibly. He or she is also required to distribute the estate's assets fairly to creditors and beneficiaries, and can face legal consequences for failing in any of his or her fiduciary duties.
Thus, the probate lawyer assists personal representatives and executors in carrying out their responsibilities during probate administration in a lawfully acceptable fashion. In addition, the probate lawyer can help in the following ways:
Initiating and Explaining the Process
A probate lawyer can help petition the probate court to open a decedent's estate and determine if there are any special circumstances that need to be addressed under state law (e.g., whether there is a valid will). The probate attorney is able to explain the process to the personal representative, and can also offer advice on how probate administration may be simplified, speeded up, and/or made less expensive.
Finding Out Which Assets are Subject to Probate
Not all of a decedent's property is subject to probate and a qualified probate lawyer can help determine which property is part of the "probate estate." For example, most states allow a certain amount of a decedent's assets to be passed to beneficiaries under simplified procedures or even bypass probate, altogether.
In addition, certain financial accounts, such as pay-on-death bank and retirement accounts, property that is held in trusts, and many types of property that are jointly owned with someone else, are also not subject to probate.
Filing Documents and Appearing in Court
The probate court is charged with overseeing that the estate's assets and liabilities are handled properly and will generally require ongoing reports about its administration. A probate lawyer can help the personal representative file the necessary paperwork.
In addition, sometimes surviving loved ones need money on which to live – money that is tied up in probate. A probate lawyer can petition the court for financial support for family members and ensure that the necessary support is fairly distributed from estate assets.
The attorney can also make needed court appearances, either accompanying or sometimes standing in for the personal representative.
Proving the Validity of the Will
Beneficiaries and creditors may dispute the validity of a will. Or, the estate itself, or even the probate court judge may have concerns about whether the will available is actually valid. A probate lawyer can help resolve these complex legal issues.
Identifying Creditors and Tax Responsibilities
A decedent's debts and taxes must be paid before assets can be distributed to beneficiaries. However, decedents don't necessarily leave behind complete lists of their creditors, so identifying and satisfying these debts quickly can require a substantial amount of effort. A probate lawyer can make sure creditors are given proper notice of the decedent's debt under the applicable law. If the estate is not large enough to cover the debts, the probate lawyer can also help negotiate these debts down.
In addition to filing the decedent's last state and federal tax returns, the estate itself may be subject to estate taxes. This will usually depend on the size of the estate and the state where the decedent last lived. Also, a beneficiary may be liable for inheritance taxes. A qualified probate lawyer can make sure that all interested persons receive appropriate tax guidance.
Sometimes creditors and beneficiaries raise disputes about what is due them from the estate. In addition, sometimes money or property is owed to the estate. These circumstances can spark lengthy, complex legal proceedings. Personal representatives rarely have the time or expertise to devote to such disputes.
However, a probate lawyer can make sure an estate's interests are adequately represented in accordance with the decedent's wishes and applicable law, that its assets are distributed fairly, and that any debts owed to it are repaid.
Providing Objective Support
A personal representative is often a loved one who has survived the decedent. Administering an estate can be a difficult task, especially when one is also dealing with issues of personal loss. It helps to have an objective, knowledgeable probate lawyer on board to make sure that the decedent's affairs wind down with dignity and respect, not only for the decedent's wishes, but for the needs of the survivors, and the requirements of the law.