Do I need attorney for probate?

Natalia Vander Laan

Natalia Vander Laan

Probate occurs when a person passes away and the distribution of their assets is not addressed by their estate plan. It is a legal process of administering the estate of a deceased person, ensuring their debts are paid and their assets are distributed according to their will or the law.

While it may seem simple, there are multiple steps to probate and legal requirements that must be met. Consequently, it can be a complex and time-consuming process. Lack of familiarity with the probate law and lack of experience in handling legal matters can result in errors and disputes that could prolong the probate process and lead to personal liability.

The person in charge of settling the estate is called a personal representative. The personal representative will have many fiduciary duties, often involving addressing various legal issues and preparing, filing, serving, and publishing, if necessary, legal documents. The personal representative will also have to appear before the judge in probate court, typically more than once. Overall, the probate process is often time-consuming and can be complicated.

The majority of this intricate work can be done by a probate attorney, who can handle most of the court appearances and prepare all the legal documents, while also assisting and advising the personal representative throughout the entire probate process. Consequently, seeking professional help not only expediates the legal process but also helps to understand it and conduct it correctly.

One of the key factors to consider is the complexity of the estate. If there are only few assets, no creditors, and if there are no disputes among the beneficiaries, the personal representative may attempt to handle the probate process without an attorney. But if the estate is complex, involving high value and varying assets, conflicted beneficiaries, or unsatisfied creditors, handling such a probate process without professional legal guidance can be challenging.

During probate, creditors have the opportunity to file claims against the estate for outstanding debts owed by the deceased. Addressing the creditor claims can be complicated, especially if there are disputes regarding the validity or priority of claims. Furthermore, failing to address the claims properly could result in legal complications and consequences to the estate and personal representative. A probate attorney can assist in reviewing and settling creditor claims, ensuring that they are resolved correctly.

Sometimes, disputes arise among beneficiaries regarding the distribution of assets or the validity of the will. These disputes can escalate fast and lead to costly litigation. A probate attorney can help mediate conflicts and, if necessary, represent one’s interests in court to resolve the disputes promptly.

Hiring a probate attorney certainly entails costs which is often an important factor to consider, but the potential long-term benefits should not be overlooked. Oftentimes, the guidance and expertise of a probate attorney can help mitigate risks and ultimately save money by avoiding costly mistakes or disputes. It also saves the personal representative time, minimizes the anxiety, and reduces potential liability. Importantly, most of the time the probate costs are paid from the estate of the decedent and an upfront retainer is not necessary.

Probate can be a complex and daunting process to navigate for the first time. While there is no legal requirement to hire an attorney for probate, factors such as complexity of the estate, personal representative’s legal knowledge and experience, and efficiency considerations, should be considered when deciding whether to seek the assistance of a probate attorney who can provide peace of mind and ensure that the probate process is conducted correctly and effectively.

Natalia Vander Laan is a Minden attorney.


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