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What is Probate Law?

At one point or another throughout our lifetime we hear about probate Attorney. If you’re like most people you don’t pay attention until one day you’re faced with the inevitable - you need a probate lawyer.

So what specifically is a probate lawyer? A probate lawyer manages the filing of the last testament or will of a deceased individual.  Sometimes there are some wicked disputes that arise from the disposition of property.  Basically a probate lawyer is an estate or a trust lawyer.

Far too many people do not think about finding a probate lawyer until someone has passed away.  When this happens, then there is a sense of urgency to hire a probate lawyer therefore not allowing time to shop around for the lawyer who will best represent your interests.

Probate lawyers can help you create a last will and testament so that your family members can have some security in the event of your passing away.  They also can assist with trust planning (including living trusts) as well as powers of attorney and medical powers of attorney.  In addition, a probate lawyer can help a person with asset protection and of course the preparing and filing of all documents required by a probate court.

Probate Practice Areas Include:

  • Last Will and Testament
  • Deceased Family Member
  • Estate Inheritance

 

Last Will and Testament

A will is simply a formal way of setting forth your wishes regarding how you would like your property distributed upon your death. You should consider a will whether you are single, married, have minor children, or own even a small amount of personal assets or property. In fact, every adult should have a will or other means to control the disposition of their assets.

If you have not formalized your intentions, your estate may meet with unnecessary and costly litigation, adding to the grief experienced by your survivors. Avoiding the financial and emotional turmoil of will contests and other legal wrangling starts with choosing an experienced estate planning attorney. 

Minor's Inheritance

If the value of the property left to the minor is not significant (such as $20,000 or less), then state law may allow an interested adult, such as the minor's grandparent or an aunt or uncle, to request that the minor's inheritance be placed in an account established under the state's Uniform Transfers to Minors Act, or UTMA for short, or Uniform Gifts to Minors Act, or UGMA for short. In addition, some states allow the interested adult to request that property be placed in a 529 account for the benefit of the minor.

If the value of the assets left to the minor are too high to be placed in a UTMA, UGMA or 529 account, or if the laws of the state where the minor lives don't authorize these types of accounts for inherited assets, then a court-supervised guardianship or conservatorship must be established for the benefit of the minor.

If a probate estate has been opened for the deceased person's estate, then the court appointed personal representative or executor will need to file a petition requesting that a guardian or conservator be appointed on behalf of the minor.

If there isn't a probate estate, such as in the case of the minor being named as the beneficiary of a life insurance policy or retirement account, then an interested adult, such as the minor's grandparent or an aunt or uncle, will need to file the petition.

A judge will then decide who will be appointed as the minor's guardian or conservator after hearing testimony from all interested persons, including the minor if he or she is over a specific age (such as 12 or 13 - this is determined by state law). After being appointed, the guardian or conservator will take over management and control of the minor's inheritance until the minor becomes an adult, which is 18 or 21 as also determined by state law.

Estate Inheritance

Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies. The rules of inheritance differ between societies and have changed over time. In law, an heir is a person who is entitled to receive a share of the decedent's (the person who died) property, subject to the rules of inheritance in the jurisdiction where the decedent died or owned property at the time of death.

In politics members of ruling noble houses may be heirs of a living person, called heirs apparent. In law, however, a person does not become an heir before the death of the decedent, since the exact identity of the persons entitled to inherit is determined only then. There is a further concept of jointly inheriting, pending renunciation by all but one, which is called coparceny.

Today the probate process is a court-supervised process that is designed to sort out the transfer of a person's property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). A common expression you may have heard is "probating a will." This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it. The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate. 

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