• Probate

Probate of an estate. When an individual dies, her assets (those not held in a trust) are suddenly in limbo. They belong to someone who is deceased. The deceased cannot act to transfer those assets to anyone else, even to those heirs or beneficiaries designated in her Will. Some living person must have the authority to liquidate investments, transfer bank accounts, sell houses, sign deeds, etc. Probating an estate is all about managing the deceased's assets to pay her valid debts and to then distribute the remaining assets to the heirs and beneficiaries named in the Will (or if there is no Will or Trust, to those heirs determined by state statute). Some assets will not need to be probated; assets held in joint tenancy or those on which there is a legally designated beneficiary may not need to be probated (for example, a life insurance policy with a named beneficiary, a bank account with a joint tenant or a "pay on death" beneficiary). The Personal Representative or Executor named in the Will takes charge of the other assets, but usually must be granted authority by the local probate court in order to manage those assets (there are some exceptions for small estates). A probate attorney represents the Personal Representative or Executor before the court, files the proper documents to open an estate file with the court, advises the personal Representative about various matters during the administration of the estate, and files the needed closing documents with the court when the estate has been fully settled (debts paid, taxes filed and the remaining assets distributed to beneficiaries or heirs). The attorney can also assist trustees of a trust with issues related to administration of the trust.

Sometimes potential heirs or beneficiaries of a deceased individual believe they have reason to challenge the terms of a Will or Trust, or they question the actions of the Personal Representative or Trustee administering the estate. An attorney who handles probate litigation can represent clients in making such challenges or in asking questions about the way the estate is being handled.

A probate attorney may also advise a Personal Representative or Trustee regarding inheritance, estate or other taxes due as a result of the death of the decedent; the attorney may also prepare the tax returns. (Note that not all states impose an inheritance tax.)

WARNING: Please do not interpret any of our web site's text under this section as legal advice. Our text is only here to provide some basic educational material that may help you identify topics of interest to you. Each person's situation is unique and no one legal solution fits everyone. If you have a legal concern or need, please contact your own attorney, or an attorney who practices in the area of law related to your concern, and ask that attorney for specific legal advice. If your concern is for a family member or friend, be sure to contact an attorney who practices in the same state as that person. Laws differ from state to state and attorneys can only practice, or give advice, regarding laws in the state in which the attorneys are licensed to practice law. By the way, it is okay to ask an attorney up front how much the attorney charges for meeting with clients and for specific services. Some attorneys charge for the type of representation (for example, the attorney can tell you that he will charge a certain amount to prepare a Will or to establish a guardianship) and some charge by the hour. Some attorneys will ask for a deposit before beginning work for you (often called a retainer). All of these are valid methods of charging clients for services, but it may help you to be able to estimate costs in advance.