What Type of Probate Help Do You Need?

Posted on: 5 August 2016

If you have been named as the personal representative, administrator, or the executor of an estate that has to go through probate, you may find yourself in need of a probate attorney. While this is not required by law, it is often a good investment of time and financial resources to ensure that things are done right. The type of help you need will help to dictate the skill set of the attorney you are looking for. While most probate attorneys are trained to handle all aspects of the job, there is a difference between ligation and transactional lawyers. Understanding the probate process and what could go wrong is the first step in ensuring you hire the right person.

What Is Involved in Probate?

Probate is simply the process of gathering together all of the assets that belong to a deceased person and ensuring that they are distributed as they need to be. If there are liabilities or debt left behind, some of the assets may need to be used to settle that, but what remains will need to be distributed to those that the deceased has designed to be the beneficiaries.

The process of probate can range from being relatively simple, which is normally the case in small estates, or in states that have adopted the Uniform Probate Code (UPC), whose primary purpose was to standardize and streamline the process surrounding estate planning and probate. There are sixteen states that have fully adopted this code, although many others have adopted some portions of it. 

In your role as a personal representative, you will be expected to first file an application with the court to be named as the administrator, executor, or personal representative of the estate. This may be outlined in the person's will, or may be expected due to the relationship you have with the deceased, such as that of the spouse, or other immediate family member. 

Once your application is approved giving you this official capacity to act on behalf of the estate, your basic duties will involve the following:

  • Notify heirs, beneficiaries, as well as any creditors that the estate is in probate.
  • Publish and keep proof of a written notice in the local newspaper to notify any creditors you may not know about.
  • Create a detailed inventory of the estate's assets.
  • Keep the estate property safe and secure during the process.
  • Ensure the proper distribution of the property. 

If everything goes smoothly, you will then be able to provide a final accounting of the estate to the court, and the estate will be able to be closed. But when things do not go smoothly, or you are dealing with a very large estate, you will probably need the services of a probate attorney. These services can be broken down into two main categories: transactional and litigation services.

What Is Involved in Transactional Services?

Especially with large estates, or those that involved numerous financial products such as stocks, bonds, or real estate holdings, there can be numerous transactions that must take place prior to the estate being settled. During this process, you will want to ensure that you have the best advice on how to legally proceed. This will keep you in good standing with the IRS, as well as the beneficiaries, and even creditors of the estate. 

An attorney who specializes in transactional law will help you to research, review, and prepare all of the documentation that you will need to get your estate through probate. Those that specialize or practice this type of law are most comfortable outside of the courtroom. 

What Is Involved in Litigation Services?

Litigation services are normally needed when something goes wrong or something is challenged during the probate process. This can happen anytime you are having to deal with a number of people during this process, and issues can occur in small estates, as well as large estate. Some of these issues may include:

  • Who is named as the personal representative, executor, or administrator of the estate
  • The validity of the will
  • Distribution of the assets in absence of a will
  • Accusations of impropriety or breach of duty during the handling of the estate
  • Theft, loss, or misappropriations of estate assets
  • Failing to maintain proper documentation during the process
  • Delaying the settlement of the estate and more

In all of these cases, you will need an attorney who has experience and is comfortable engaging in the litigation process. This is because they are probably have to help you to answer to the allegations that are being put forth either in front of the court, or with another attorney who may have been hired by the person presenting the challenge. 

Do not feel like you have to go through the probate process alone; contact firms like Bayer Jerger & Underwood to get the help you need. They will be willing to review you specific case and be with you during every step of the process.