The probate process is required to pass the assets of the deceased on to beneficiaries under a will. Assets held by the deceased individual go through probate. A will does not avoid the probate process. The probate process is lengthy, expensive, and usually unnecessary.
During Probate, assets pass to the designated beneficiaries under the will. Before the assets can be distributed, however, the court will designate a personal representative and will wait the statutory period of time for creditors to come forward and make claims against your estate.
Litigation can result during the probate process. Wills can be contested when there is undue influence, fraud, mistake, or if it is alleged that the will was executed under duress. If a trust is properly set up and you transfer your assets while you are alive, probate of the trust assets can be avoided. An effective estate plan usually ensures that very few assets are required to go through probate.
As the old saying goes, you can't take it with you when you die. But a probate lawyer can help surviving family members settle your debts and distribute your assets after you're gone, with or without a will. So what is a probate lawyer? Generally speaking, probate lawyers -- also called estate or trust lawyers -- help executors of the estate (or "administrators," if there is no will) manage the probate process. They also may help with estate planning, such as the drafting of wills or living trusts; advise on powers of attorney; or even serve as an executor or administrator.
Hiring a Probate Lawyer: With a Will
The process will likely go smoother when the decedent has drafted a will prior to his or her death. If an individual dies with a will, a probate lawyer may be hired to advise parties such as the executor of the estate or a beneficiary on various legal matters. For instance, an attorney may review the will to ensure the will wasn't signed or written under duress (or against the best interests of the individual). Elderly people with dementia, for example, may be vulnerable to undue influence by individuals who want a cut of the estate.
There are numerous reasons that wills may be challenged, although most wills go through probate without a problem. Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor:
- Collecting and managing life insurance proceeds;
- Getting the decedent's property appraised;
- Finding and securing all of the decedent's assets;
- Advising on how to pay the decedent's bills and settle debts;
- Preparing/filing documents as required by probate court;
- Managing the estate's checkbook; and
- Determining whether any estate taxes are owed.
- Hiring a Probate Lawyer: Without a Will
- If you die without having written and signed a will, you are said to have died "intestate." When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, the surviving spouse receives all of your intestate property under many states' intestate laws. However, intestacy laws vary widely from state to state.
In these situations, a probate lawyer may be hired to assist the administrator of the estate (similar to the executor) and the assets will be distributed according to state law. A probate lawyer may help with some of the tasks listed above but is bound by state intestacy laws, regardless of the decedent's wishes or the family members' needs.
A relative who wants to be the estate's administrator must first secure what are called "renunciations" from the decedent's other relatives. A renunciation is a legal statement renouncing one's right to administer the estate. A probate attorney can help secure and file these statements with probate court, and then assist the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.).