why have lawyer for probate if there is a will

You need a probate lawyer when the estate left by someone close to you dies, leaving an asset. When you lose a loved one (generally a guardian/ father/ mother), a probate legal proceeding becomes necessary to validate a will to settle a property or asset. Also, if the decedent

makes no will, then it is said that the descendant has died intestate.

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What does a probate attorney do?

A probate attorney is a state-licensed lawyer who can help the Executor of a Will (if one was appointed) or the beneficiaries of an estate get through probate as they work to settle an estate. Their services could typically include everything from finding and inventorying assets of the estate, to understanding and paying all the debts the estate may have, to distributing and …

Do executors need a lawyer for probate?

Feb 05, 2021 · If there was no last will and testament, the deceased is said to have died intestate, and the probate process is handled according to the intestacy laws and the probate court. Many of the same steps required in the probate of an estate with a will are taken.

What is the purpose of a probate case?

If a conflict arises about the will, a probate lawyer may be necessary to represent the estate. Perhaps a second set of children from a second spouse didn’t receive equal shares in the estate, and they are protesting. The lawyer would help settle the dispute or represent the estate and decedent’s wishes in court.

Do I need a lawyer to wind up an estate?

Not all executors, however, need to turn a probate court proceeding over to a lawyer or even hire a lawyer for limited advice. If the estate that you're handling and doesn't contain unusual assets and isn't too large, you may be able to get by just fine without a lawyer's help.

What is a Probate Attorney

A probate attorney is a state-licensed lawyer who can help the Executor of a Will (if one was appointed) or the beneficiaries of an estate get through probate as they work to settle an estate.

What Does a Probate Attorney Do?

Also known as a probate lawyer, probate attorneys are hired to help settle an estate. After the death of a loved one, their Estate Plan dictates the next steps. If they have a Will, probate will be necessary. Trusts won’t go through probate, which can sometimes make the process a bit less complicated and much more private.

Do I Need a Lawyer for Probate?

Whether or not you need a probate lawyer will depend on multiple factors and scenarios. You’ll want to consider things like:

Questions to Ask a Probate Attorney

If you do end up using a probate attorney, there are a few things you should know before retaining one. Asking questions up front will ensure there are no (costly) surprises along the way. Use the following list to help you find an attorney who will be the right fit for your exact needs.

What are the duties of a probate lawyer?

What are the duties of the probate lawyer? When there is a last will and testament, a probate lawyer might be hired to assist the executor of the estate with legal questions or complex tasks . The probate lawyer can be assigned any tasks related to probating the estate, including: Handling a will contest if one arises;

Why do executors need a probate lawyer?

A small estate often has a simple probate process, while bigger estates require more work in finding beneficiaries, securing assets, contacting creditors, paying taxes and making the final distribution. Therefore, these are the main reasons that executors will choose to hire a probate lawyer for the probate process.

What happens if there is no last will and testament?

If there was no last will and testament, the deceased is said to have died intestate, and the probate process is handled according to the intestacy laws and the probate court. Many of the same steps required in the probate of an estate with a will are taken. But the deceased’s estate will be distributed as directed in the state’s intestacy laws as ...

What is the job of a testator?

Collecting and managing the testator’s, also known as the deceased’s, life insurance proceeds; Having the estate appraised; Finding and securing all of the testator’s assets; Advising the executor on how to pay the testator’s bills and settle debts ; Preparing and filing documents required by the probate court ;

What is probate in a will?

Probate is the legal process that ensures your debts are paid and legal title of your assets is transferred to the appropriate heirs and beneficiaries. If you have a will, the probate process determines whether the will is authentic and valid. The complexity of probate varies, based on the composition of the estate and the state or local probate ...

Can there be more than one will?

There potentially is more than one will. The executor is unfamiliar with the probate process and wants help to avoid mistakes. The deceased’s estate is large and complex. The probate process in the state or locality is long or complex. Accounting for the estate is complicated.

Can an estate be probated without an attorney?

The complexity of probate varies, based on the composition of the estate and the state or local probate laws. Many estates can be probated without the help of an attorney, while an attorney is helpful for other estates.

Why do you need a probate attorney?

Let’s take a look at some of the top reasons to hire one. 1. Keep the Family from Conflict. Hiring a probate attorney is a great way to prevent needless family conflict. Without a lawyer, many family members may want to be a part of the probate process, which adds to the conflict and confusion. If you don’t allow them to participate, they might ...

What happens if probate is not done?

If probating doesn’t get done right, the person in charge of the estate can become liable for any mistakes made in distribution. It’s incredibly difficult for someone without a thorough working knowledge of the law to probate an estate.

What happens when family members don't agree with probate?

When family members don’t agree with the probating process, lawsuits can be the result . These lawsuits are expensive and time-consuming, and when they involve family members, they can also be emotionally exhausting.

What happens if you don't allow probate?

But the more people get on board, the more difficult the process becomes. Tensions can arise when people disagree on the best way to approach probate issues.

What happens when someone passes away?

When someone passes away, there’s often at least one defendant who tries to make a claim against the estate. This often happens when a family member or spouse wasn’t mentioned in the will but feels like they should have been.

What is the process of determining if a will is valid?

The process of deciding that a will is valid and accurate is called “probating an estate.”. In this step, the court takes a look at the will and decides that it’s valid. Describing the process is simple, but the actual process is not so straightforward.

Do you have to take care of debts when you die?

As mentioned above, the deceased might have owed some debts when they passed. Taking care of these financial responsibilities may not be easy, but it is necessary. You’ll need to spend more time on these debts if the deceased had a complex financial situation.

Why do you have to go to probate court?

There really are only five reasons why you'd have to go to probate court to either make your claim on the deceased's assets or to prove that you are a legal beneficiary. If any one of the following applies to you or to the deceased, then you might want to consult a probate attorney. 1. Probate court is necessary if the will is deemed invalid ...

Why is probate court necessary?

Probate court is necessary if the will is deemed invalid for one of these reasons: Improper Execution – it wasn't written clearly or it was not a legal will. Mental Incompetence – the deceased was not mentally competent when he or she made up the will so their decisions are questioned.

What happens if you don't have a will?

2. Probate is required if the deceased didn't have a Last Will and Testament. If there is no will, then there has to be a legal and equitable probate court process for distributing the deceased assets and for transferring the title of probate property. The only way to do this is with probate. 3.

What happens if all the beneficiaries of a trust pass away?

But if all the named beneficiaries have passed away or if the deceased didn't name beneficiaries, then probate is required to transfer the money or title to the beneficiaries.

When is probate required?

Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. What this means if the deceased owned property jointly with another person, such as in the case of a common law marriage, then probate is required to ensure that the deceased's share of the property is properly distributed to legal heirs.

Can you probate a deceased person's assets?

Assets eligible for probate varies from state to state, country to country . You have to check for specific probate laws or with a probate lawyer in your region to determine if the deceased's assets were significant enough to warrant a probate .

What is a Probate Lawyer Supposed to do in the Probate Process

A probate lawyer is an attorney who offers legal counsel and assistance to the personal representative or executor of an estate throughout the probate process. Probate is a complicated process that can take months to complete or even years in some cases.

Is a Probate Attorney the Same as an Estate Attorney?

A probate lawyer may also be known as an estate attorney. The two terms technically mean the same thing. Sometimes people associate an estate attorney with a probate process that is larger and has more assets.

What Does a Probate Attorney Do?

The role of a probate attorney can vary, depending on the size and complexity of the estate. In the simplest situations, they are knowledgeable on probate law and the nuances of specific state laws, and they may give legal advice, answer questions or direct the personal representative through the steps to complete the probate process.

What Information to Know Before Contacting a Probate Attorney

Before you contact a probate attorney, you should know what you need them for. It’s helpful to have an idea of the assets owned by the estate and if you anticipate problems with beneficiaries or other involved parties.

When You Will Likely Need a Probate Attorney

Not all estates will need to hire a probate attorney. If the assets include a named beneficiary and the estate is below a certain dollar amount for value, the personal representative may not even need to go through probate.

How a Probate Lawyer Advises and Assists a Personal Representative

Sometimes a personal representative may want to hire a probate lawyer to assist them through the probate process. They know they are responsible for the handling of the estate and may not feel comfortable with the weight of that task alone.

What is the first step to take when you wind up an estate?

If you read the conventional advice for executors, the first step is usually "hire a lawyer. ". And you may well decide, as you wind up an estate, that you want legal advice from an experience lawyer who's familiar with both state law and how the local probate court works. Not all executors, however, need to turn a probate court proceeding ...

How many states impose estate taxes?

Close to 20 states impose their own estate taxes, and many of them tax estates that are valued at $1 million or larger.

Can assets be transferred without probate?

Ideally, all assets can be transferred to their new owners without probate court. Some common examples of assets that don't need to go through probate are assets are held in joint tenancy, survivorship community property, or tenancy by the entirety. Assets held in a living trust can bypass probate, too.

Do you have to give consent to a text message from Martindale-Nolo?

You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary. Message and data rates may apply.

Can you wrap up an estate alone?

(If you don't know the answers, ask a lawyer—before you agree to hire the lawyer to handle things for you.) The more questions you answer with a "yes," the more likely it is that you can wrap up the estate without a professional at your side.

Is probate a UPC?

If the state where the deceased person lived has adopted a set of laws called the Uniform Probate Code, probate should be pretty straightforward. In UPC states , most probates are conducted with minimal court supervision. A few other states have simplified their procedures without adopting the UPC.

What is probate in a will?

Probate is the legal process of administering a person’s estate after their death. If you have a last will and testament, probate will involve proving that your will is legally valid, executing your instructions and paying applicable taxes. Having a clearly written will is one way to make the probate process easier on your loved ones.

Why avoid probate?

The benefits of avoiding probate are: It’s often simpler and faster for account beneficiaries to claim the funds. You’ll avoid probate court fees and executor’s fees (which can be significant, especially if the executor is legally entitled to a certain percentage of the estate, such as in California).

What happens if you die without a will?

If you die without a will, the probate court will rely on your state’s intestate law to figure out how to distribute the person’s stuff.

What is a small estate affidavit?

Small estate affidavit, summary probate and/or summary administration: Documents or processes that can allow you to skip or shorten certain aspects of probate (i.e. distribute property without a lengthy court process). Estates below a certain value (depending on your state) are eligible for this. Related Articles.

How to pass a will?

An executor can’t jump right in and start passing along family heirlooms and inheritances. The first step is filing a petition with the probate court to open the process and “prove” the will. Until that happens, they’re not allowed to distribute or discard any property.

What happens if a will is uncontested?

If a will is uncontested—that is, everyone basically agrees that the will is valid and no one is interested in challenging it— the probate court doesn’t have much to do besides review and sign paperwork.

How much can you skip the court process for a small estate affidavit?

California law lets you skip the court process if the total value of probate-eligible assets (property and financial accounts) comes to less than ​$30,000.

Why is probate necessary?

In any of these scenarios (and others), probate becomes necessary to deal with the problems of an incorrect, invalid, or contested will. So, if you’re someone’s beneficiary, don’t wait until your loved one passes away when it’s too late to fix any probate-triggering problems that might arise.

How to avoid probate?

These are the three main ways for estates of any size to avoid probate: 1. With a living trust. One of the most common and recommended ways to transfer real estate to your beneficiaries without the help of probate court is with a living trust.

What happens if you own property in multiple states?

When you own property in multiple states you need to make arrangements for transferring ownership for each property based in each state’s probate laws. If you don’t make arrangements appropriate for each state, your heirs won’t just be facing regular probate—they’ll have to go through ancillary probate in each state.

What happens if there is no will?

However, if there is no will or it fails to name any beneficiaries, then it’s up to the probate court to decide what happens to the estate.

When is a living trust needed?

2. When there’s joint tenancy in place. A living trust isn’t needed when two spouses own a home together in joint tenancy. “If a couple is holding a property as joint tenants and one spouse passes away, then it avoids probate because they have the rights of survivorship,” explains Kittle.

What happens if you don't have a will?

When there is no will. “If you don’t have a will, your estate will wind up in probate. ”. This all-too-common warning is generally true. No-will estates usually fall under intestate succession laws which can vary from state to state. So, when there is no valid will to name an estate executor, in most states and cases it’ll be necessary for ...

When there are problems with an existing will, does it mean that someone made out a will?

When there are problems with existing will. Just because someone’s made out a will doesn’t mean they did it right. Any number of problems can arise to trigger probate even if there is an existing will that attempted to avoid the process.

How to Start Probate without a Will

When a person dies without a will yet has properties in his possession or ownership, somebody should take care of closing out their estate. Any person may serve as the administrator if they want to start probate without a will.

The Advantages of Probation without a Will

Do you own a home and other properties? Do you have items that have sentimental value? Do you have rare pieces of art or valuable materials? Look around your home and think about what will happen to your valuables when you’re gone. This might sound upsetting, but this should be something you have to think about.

The Disadvantages of Probation without a Will

If you leave your loved ones without a valid will, this may become complicated for them. Below are just some of the disadvantages of probation without a will:

Written by Erin Porteous

For the past ten years Erin Porteous enjoyed the freedom of being an independent purveyor of creative services. I specialize in crafting and producing scripts for radio and TV commercials for businesses of all sizes. Moving into the web past 2 years I've been part of LR family driven by a passion for finding simple solutions to complex problems.