Probate Attorney Questions



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  1. What is probate?

  2. Is probate necessary?

  3. Does all property go through probate when a person dies?

  4. Do life insurance or retirement benefits need to go through probate?

  5. Do living trusts go through probate?

  6. How much does probate cost?

  7. How long does probate take? (see time line)

  8. Where will the probate hearing be?

  9. Who is in charge of the probate process?

  10. Who can be the personal representative?

  11. Who is not allowed to be the personal representative?

  12. Does the Court supervise the personal representative?

  13. What does the personal representative do?

  14. If I am named as executor in a Will, do I have to serve?

  15. If I serve as executor, will I get paid?

  16. What happens if the personal representative fails to perform his or her duty? (see article)

  17. Do I have to use a lawyer for the probate process?

  18. What if someone objects to the Will?

  19. Who can contest a Will?

  20. When can a Will be contested?

  21. What if there is no Will? (see locating the will)

  22. What happens if we cannot find a Will?

  23. What if the decedent owned land in more than one state?

  24. How do creditors get paid?

  25. If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?

  26. How are taxes handled in probate?

  27. Am I responsible for paying the rest of my deceased spouse’s bill?

  28. How can I find out if there was a Will?

  29. What if someone dies and I have the Will in my possession?

  30. As an heir, how do I stay informed of what is happening in the probate case?

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16. Probate attorney question: What happens if the personal representative fails to perform his or her duty?

The court may lower or deny compensation and can replace the personal representative with someone else. The personal representative may even have to pay for any damages he or she caused.

A personal representative may be held liable for: 

    • improperly managing the assets of the estate,

    • failing to collect claims and money due the estate,

    • overpaying creditors,

    • selling an asset without the authority to do so, or at an inappropriate price,

    • not filing tax returns on time,

    • distributing property to the wrong beneficiaries, or

    • distributing property to beneficiaries before all creditors have been paid, etc. 

17. Probate attorney question: Do I have to use a attorney for the probate process?

Depends of the state that probate is to be filed in. Some states require an attorney to file probate. It may be a good idea to visit and attorney early in the process if the estate is complex. A lawyer can help you meet all deadlines and avoid mistakes and delays.

A lawyer can sometimes help avoid disagreements among family members over minor or major issues. But the lawyer represents the interests of the personal representative, not the beneficiaries.

You may not need a lawyer if: 

    • Your state allow for no-attorney filling of probate

    • you are the sole beneficiary,

    • the decedent's property consists of common assets (like house, bank accounts, insurance, etc.)

    • the Will is simple and straightforward, and

    • you have access to good Self Service materials.

In most cases, the personal representative may never see the inside of a courtroom. But, s/he will have to go to the Court Clerk's office. 

18. Probate attorney question: What if someone objects to the Will?

If someone files an objection to the Will, or produces another Will, a "Will Contest" has begun. Seek the advice of a probate litigation attorney regarding will contests.

Will contests are not uncommon, but few people actually win one. Still, they can cost a lot of money and time.  

19. Probate law question: Who can contest a Will?

Only a person with "standing" can contest a Will. This means the person must have a personal financial stake in the outcome.

Examples of people with standing to contest a Will are: 

    • a child or spouse who was cut out of the Will

    • a child who receives one third of the estate if a sibling receives two thirds,

    • children who feel that the local charity should not get all the parent’s assets,

    • anyone who was treated more favorably in an earlier Will.

Sometimes, there is a Will contest because someone wants a different person, bank, or trust company to serve as personal representative for the estate, or as a trustee of trusts created by the Will.  Seek the advice of a probate litigation attorney.

20. Probate attorney question: When can a Will be contested?

Most challenges to Wills are by potential heirs or beneficiaries who got little or nothing. Will contests must be filed in Probate court within a certain number of days after receiving notice of the death, or petition to admit the Will to probate, or issuance of Letters Testamentary to a personal representative.

Examples of reasons to challenge a Will are: 

    • there is a later Will which, if valid, would replace the earlier Will;

    • the Will was made at a time the decedent was not mentally competent to make a Will;

    • the Will was the result of fraud, mistake or "undue influence";

    • the Will was not properly "executed" (signed by the decedent);

    • the so-called Will is actually a forgery;

    • for some other reason (such as a pre-existing contract) the Will is invalid.

If there is a Will contest, you should hire an experienced attorney.

The probate court may invalidate all of the Will or only the challenged portion. If the entire Will is found invalid, the proceeds will probably be distributed according to the state laws of intestacy, unless there is a prior revoked Will that is revived and admitted to probate.

Talk to a lawyer for more information.

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