What is Probate?

Probate is when the government handles the distribution of a deceased person’s assets. Avoiding probate, i.e. not letting the government decide what happens to your estate and making sure your post-life wishes are respected are among the top motivations for hiring an estate planning attorney. Yet, for several possible reasons, probate becomes the reality for the families of many individuals after their passing if they did not have an estate plan in place.

Any representative of the deceased person who is handling their post-life affairs is called an “executor” of the estate. Any heirs, or those due to inherit any property after the individual’s passing are called “beneficiaries”. The executor does not have to be a beneficiary but often is. When beneficiaries don’t get along or disagree with the executor there can be problems, and this is part of what a probate lawyer helps to resolve. If it gets to the point where beneficiaries cannot agree with the executor or each other then it could lead to estate litigation. In those cases each beneficiary would have their own lawyer.

When an individual dies without an estate plan then they died “intestate” and the individual who died is called the “decedent”.  This is the more common case than dying “testate” or with an estate plan in probate cases, although simply having a Will does not mean probate will be avoided.

The probate process is not simply a matter of distributing the estate to the beneficiaries, especially if the decedent has any unpaid taxes or debts which need to be paid from the estate. Here is a more detailed description of the probate process although it can vary from state to state and the laws of any state where the decedent owned property would apply. The link is not a legally authoritative source but is meant to describe the process in laymen terms. Often funeral expenses are covered by the estate, but that is one of the items that will be determined by the executor under legal counsel.

Probate Attorney vs Estate Planning Attorney

While probate attorneys are often estate planning attorneys, there are quite a few estate planning attorneys who do not practice probate law. Finding a probate lawyer is actually much rarer. While the two are similar they are indeed two different areas of law.

An estate planning attorney will help a living individual with matters of their estate before their passing; this will involve creating and filing legal documents and entities, such as Wills, Trusts, and Power Of Attorney. Before the individual’s passing the only interaction is with that individual.

A probate attorney will help the heirs or beneficiaries of an individual who has passed away without an estate plan. They will often handle family disputes over the property as well as represent the family or heirs in probate court. A probate lawyer assists with the probate court process, the sale of estate property, obtaining appraisals of property, determining and paying taxes owed, and distributing assets to beneficiaries.

Do I Need A Probate Lawyer?

The decedent’s next of kin could potentially handle the affairs of the estate without hiring a lawyer; it would be easier if the executor understands state law, if the estate has few assets and if there are few heirs who all get along with each other, but that’s a lot of “ifs”. Here are a few questions to ask yourself:

• Is there an estate plan? (No? You probably want a Phoenix probate lawyer.)
• Is there a will? (Yes or no, you probably want a lawyer.)
• If there is a will, is it clear? (No? You probably want a lawyer.)
• If there is a will, does it appoint an executor? (No? You probably want a lawyer.)
• If it appoints an executor, do you as a potential beneficiary get along with that executor and trust them to handle the estate properly? (No? Then you’ll definitely want a probate lawyer.)
• Are there many beneficiaries or few? (The answer can vary from family to family, but even if they are few, all it takes is two people to have two different opinions).
• If you are the executor, are you familiar with estate law or probate law? (No? Then you’ll probably want a lawyer. If you just want legal advice and instruction on how to do things, then we can assist you with that or provide the full service, whatever you decide).
• Does the deceased person have any debts or unpaid taxes? (No or unsure? You probably need a lawyer).
• Did the deceased person own any businesses or have investments? How complex is their estate? (Yes or complex? Then yes, you want a lawyer.)
• Did the deceased person own property in more than one state or even overseas? (Yes? You definitely want a lawyer who will also consult with lawyers in the state where the property is owned.)
• Are the assets extensive or few? (Extensive? Then you’ll want a probate lawyer)
• Does the estate include any real estate whatsoever—houses or land as opposed to just personal property and possessions? (Yes? Then you probably want a lawyer)

In most cases, as the decedent’s surviving family you’ll want a probate lawyer to help you navigate the probate process and ensure that the estate is handled properly. That rings more true as the complexity of the estate increases.

What if the beneficiaries all agree? Do I still need a probate lawyer? (Uncontested Probate)

When there are no disputes between beneficiaries, or in other words they all agree on how the estate should be distributed between heirs, then this is called Uncontested Probate. It may also be known less officially as unchallenged probate or informal probate because it does not require litigation. Uncontested probate is certainly less complicated and moves along at a better pace than probate which requires litigation. Though the probate process itself is complicated enough so that most people will still want legal assistance to complete the process and ensure that their inheritance is received properly.

Contact Us Today

Civitas Law Group is versed in all aspects of estate law, including the probate process. We’ll help you navigate that process as smoothly as possible and do all we can to help you receive what is rightfully yours.

If you’re in need of a probate attorney, then contact us today.