When a family has just suffered the loss of a loved one and is going through grief and stress, they’re faced with a lot of hard decisions - at a time when they’re least able to make them.
That’s why an attorney is an indispensable asset. Nowhere is this more apparent than during estate settlement and probate proceedings. Probate laws are complex and virtually no individual (other than a probate attorney) has adequate training in such an arcane and complex area.
When a person dies their family carries a heavy burden of grief and bereavement, a circumstance that no-one is ever really prepared for. Compounding their anxiety is the onerous task of properly settling the estate. A qualified probate attorney can ease the tension in this difficult situation.
Why Hire a Probate Attorney?
Unfortunately, the law waits for no one, and a decedent’s estate must be settled in a timely manner. The responsibility of who will settle the estate is determined by the Last Will and Testament of the decedent.
The person named in the will to complete the task is called the executor of the estate. Through the probate proceeding (which is the process of proving the validity of the will) the court appoints the executor to be the personal representative of the estate. Hiring a qualified probate attorney should be one of the estate’s first and top priorities.
If a person dies without a valid will, the decedent is deemed to die "intestate". Under this process the division of estate property is determined by state statutes. Family member estate allocations are a function of the intestacy laws under the jurisdiction of the state that the decedent was domociled.
For this reason, it is important to hire a probate attorney located in the decedent’s home state. Assets titled in a trust’s name usually avoid the probate process entirely, thus providing greater privacy and lower administrative costs. This also allows the the probate attorney to distribute assets more quickly.
How a Probate Attorney Can Help
As you might expect, every estate is different and has unique assets to be valued, sold or distributed to beneficiaries. But before an executor takes any action they should consult with the probate attorney, to prevent a mistake that may be difficult to reverse.
The settlement of an estate can take anywhere from 9 months to several years to be fully paid out and closed, but the probate attorney will be your best guide in this area.
One of the greatest advantages of dealing with an experienced probate attorney is their ability to protect the executor from legal and financial liability. The repercussions of inadvertently mishandling estate affairs can be severe. The executor or personal representative has inherent fiduciary duties of loyalty to the estate. Fiduciary duties are one of the first topics that all executors should discuss with a probate attorney.
Sometimes an executor’s “good intentions” can lead to big problems. For example, allowing a friend or family member to use the decedent’s property or car may expose the estate to liability.
Out of generosity, sympathy or pressure from a family member the executor may over-distribute assets to a beneficiary and then have inadequate funds to pay the remaining beneficiaries their share or to satisfy the estate's final expenses.
When this happens, the executor may have to make up the difference with their personal funds to pay any unpaid expenses.
An experienced probate attorney can help prevent this.
Hire a Probate Attorney Early
If an executor tries to navigate these waters alone, without a probate attorney, it may place them in legal jeopardy and even financial jeopardy. Estate settlement is no places for do-it-yourselfers.
The adverse consequences, legally, financially, and emotionally, are simply too high. Talk to a probate attorney as early in the process as possible.
Along with saving you time and money, he or she may save you something much more important… your peace of mind.
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Other Topics: For Executors and Personal Representatives
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Getting Organized
Selecting a Probate Attorney