What Is a Probate Lawyer?

When a person passes away, he or she usually leaves property behind. This property must be disposed of and distributed in one of two ways: either according to the decedent's last will and testament, or pursuant to the state laws where the person died in the event that the decedent did not have a last will and testament. A probate lawyer handles the disposition of the property of the decedent (also known as the decedent's estate) in the manner specified in the last will and testament. A probate lawyer may also handle those instances where there is no last will and testament; in such an instance, the probate lawyer makes sure that the decedent's property is distributed according to the laws of the applicable jurisdiction.

The Probate Process

The probate process includes not only disposing of a decedent's property, but also handling debts and working out any claims to the estate. Debts may also include liens against the property, credit card debts, and/or household bills. Additionally, there might be claims filed against an estate distributed pursuant to a will, which is also known as a will contest. For example, if a person was left out of a will, he may seek to challenge the will in an effort to obtain money or other property. A probate attorney will handle all of these issues in order to ensure that the property is distributed properly.

What is Involved in Probate?

The probate process involves the filing of documentation with the appropriate court. Frequently, this court is called the surrogate's court. If the decedent left a last will and testament, the will is filed with the court. Additionally, supporting documentation (such as a death certificate) will be filed with the last will and testament. Moreover, each surrogate's court has different rules which indicate any other documents necessary. A probate attorney will check the state laws to check what documentation each court requires.

Challenges to Probate

Generally, in order to contest a will, the person contesting must have standing to do so; in other words, he must have a direct interest in the estate. For example, the person contesting the will may be a child of the decedent, a spouse or some other person who thinks he should receive money or other property from the will. A will contest can be a lengthy process which frequently results in litigation regarding the estate. The probate attorney will handle this litigation, as well. However, not all will contests result in litigation; a probate attorney may be able to work out the issues and settle the matter without going to court.

Steps of Probate

A probate lawyer often will have to submit documentation to demonstrate that the will was validly created. In addition, the probate lawyer will oversee the identification of the decedent's property and, if necessary, obtain a valuation of it. Thereafter, a probate lawyer will submit a list of this property and its value, also known as the inventory. In addition, he will identify any claims to the estate. Claims to the estate may include credit card debts, household bills, liens, individuals who won a will contest, and any other debts the decedent owed. Finally, the lawyer will make arrangement to pay any taxes. Once this is complete, the probate lawyer will provide payment of the estate to the proper people.

Other Probate Process Considerations

Frequently, there may be certain advantages and/or disadvantages in the probate process. For example, there may be tax advantages to be gained by dispositions of the property in a particular manner. A probate lawyer can advise his client as to these issues and assist in minimizing any negative impacts of the probate process.