When a person dies, a will or a testament dictates the fate of their estate and assets. The distribution of assets, however, is followed by lengthy probate. Luckily, we have probate lawyers to make life easier for us.
A probate lawyer is the cornerstone of the entire probate process. They are state-licensed attornies who work with a personal representative, known as the executor, to secure and distribute the assets of the deceased. The claimants of the assets typically include beneficiaries, creditors, and heirs.
The probate attorney walks the personal representative through the entire probate process. However, if the executor is not present, the probate attorney either files a petition to get him or her appointed, or fulfills the executor’s role as well.
The workflow of a probate lawyer
The probate lawyer begins the process by carrying out an appraisal of the assets and estate. The executor is then guided by the lawyer to secure the assets and determine their death-date values. If the assets happen to be non-probate in nature, they are distributed without a probate process.
The non-probate assets generally constitute:
- Life Insurances
- Individual Retirement Account (IRA)
- Medical Reimbursements
The next step involves the administration. This phase essentially encompasses the examination of the decedent’s financial affairs.
If you hire an attorney who is a probate specialist, he/she will take care of the entire process, like sending notices to the beneficiaries, creditors, and heirs, filing legal documents, and dealing with the creditor’s claim, etc.
Once the taxes owed to the state are determined and paid, the probate attorney files a final petition in the court, along with the documentation of the entire administration process. The court then orders the distribution of the assets.
In the absence of a will
There have been cases when a person died intestate — without leaving a will behind. In such cases, the estate is distributed under the intestacy laws of the state where the property is located.
A probate lawyer, under these circumstances, works with the administrators of the estate. The assets are divided as per the state’s laws. For example, the intestate laws in many states distribute the assets in favor of a surviving spouse (if any).
If any of the decedent’s relatives express a wish to be an estate administrator, he or she is required to secure a legal statement from the decedent’s other relatives. The legal statement, known as renunciation, renounces one’s right to administer the estate. Thereafter, the probate lawyer assists the administrator with the proceedings.
The conflict management
A probate attorney is generally sought by the claimants when the credibility of the personal representative is not up to the mark.
Other than that, conflicts may arise in the form of a will contest.
A will contest is an outcome when the beneficiaries denounce the credibility of the decedent’s will and file a lawsuit. Some of the common reasons to instigate a will contest include:
- Presence of an error in the will or a procedural mistake
- An indication of a potential fraud
- The heirs were not mature enough to understand the will when it was written
The probate attorney could attend the court hearings in this situation and employ the skillsets to settle the will contest.
Moreover, there are other scenarios where complexities arise and without the presence of a probate attorney, there are chances of disputes. The probate specialists exercise their legal skillsets and settle the dispute on technical grounds.
The accounting in the probate process can get so complicated at times that some people take the help of accounting firms just to get this part done by probate lawyers.
The financial analyses are carried out in the administration process and then encapsulated in a report which is submitted to the court. This includes information about received amounts, bills paid, bank accounts and transactions, net gains and losses on sales, bonds and stocks depositions, sales of securities, and receipts of dividends.
In addition to the outstanding taxes, the probate attorney also inspects debts and establishes a framework, together with the executor, to pay them off. It gets challenging when either the estate is held invalid or the remaining assets are not ample to pay the debts in full.
The settlement of the creditors’ claims
This process is initiated by getting details of the creditors. For that, the executor gets access to the mail of the decedent and changes the mailing address so that the notifications could be received at his or her address.
When the creditors are identified, the probate attorney gets the notice delivered. The notice is published in the local newspapers and informs the creditors the file a claim. The creditors are then required to respond within the given time frame.
If a claim is valid and straightforward, and sufficient funds exist, the court authorizes the probate attorney and executor to issue the amount right away. The rest of the claims are reviewed and the amounts are designated for the final distribution.
If you happen to undergo a probate process, it is best advised to get a detailed insight from an experienced probate lawyer before hiring one. The approaches of probate attorneys could slightly differ so inquire about the procedure beforehand.
Lastly, even though a probate process could appear straightforward initially but it could entail unforeseen complexities later on. Therefore, a probate attorney should always be counted on to streamline your process without any delays.
My sister and I can’t claim the assets that our dad left, which is why we’re determined to look for a probate lawyer. Thank you for sharing here as well the importance of hiring an experienced lawyer. I also agree with you that the chosen attorney must be great with negotiation.