Probate can at times be a long and complicated legal process that determines how a decedent’s estate will be distributed. Most trusts and estates attorneys advise their clients on ways to avoid probate but if someone dies with a will, or testate, or without one, or intestate, then the administration of their estate will be under the supervision of the probate court.
A trusts and estates attorney is also referred to as a probate lawyer or one who assists the named or appointed executor, administrator or personal representative in the handling of the decedent’s affairs so that the applicable state and federal taxes are paid, debts are satisfied and the remainder distributed according to the decedent’s wishes or under state intestacy laws. Although an executor or administrator can choose to handle all probate matters without legal counsel, having an experienced and competent probate attorney can ensure that all necessary documents are completed and timely filed, that the necessary taxes are paid, any disputes handled and resolved and that all other steps are completed efficiently and expeditiously.
Is Probate Needed?
Not all estates need to go through probate and if you can avoid this process, then the decedent’s estate assets can pass more easily or automatically in many cases to the beneficiaries. For example, trust property will pass to the beneficiary since these assets are owned by the trust and will pass according to its terms. Also, life insurance, annuities, property held in joint tenancy with right of survivorship and many retirement plans such as IRAs pass directly to the beneficiaries under the terms of the contract or instrument.
For solely owned property, though, the change of title will generally have to go to probate and it is best if a probate attorney is there to advise and assist with the steps involved.
Duties of a Probate Lawyer
The tasks that a probate attorney performs are numerous and can be complex and time consuming. These include the following:
- Helping to locate the decedent’s probate and non-probate assets
- Obtaining appraisals and valuations of personal and real property
- Tracking the estate’s bank account
- Advising on payment of bills and other obligations
- Determining the applicable federal and state taxes and the sources of payment for these obligations
- Helping arrange the sale of real and personal property
- Handling other tax issues
- Resolving disputes between the executor or personal representative and estate beneficiaries
- Transferring title to real estate to named beneficiaries
- Knowing when permission from the court is necessary before certain transactions can be performed
- Overseeing the distribution of the estate’s remaining assets to the beneficiaries
A probate becomes much more complicated if a business or commercial real estate is involved. There may also be instances where there are insufficient funds to pay all creditors or taxes. In these cases, consideration has to be given to which creditors have priority.
Small Estate Procedures
Even if the estate is subject to probate, it may be small enough under state law to be summarily administered. In most states, all you need is a sworn affidavit that is presented to whoever is holding the asset. Consult with a probate attorney as to whether the decedent’s estate meets the qualifications for this simpler and streamlined process.
Few other events rip families apart than arguing over who is entitled to the funds left by the decedent or whether the family member named as personal representative or executor is mishandling funds. Many probate battles drain funds from the estate and that of the disputing parties. Consult with a probate attorney if a will contest is brewing or has already begun.