Definition
Probate law is commonly understood as an expansive area of law that includes wills and estates, and the distribution of assets after someone has died. We are often asked: “what does ‘probate’ mean”? Literally, “probate” means to “prove” that a Last Will is valid; that the Will was not, for example, the product of undue influence or a forgery. The process also allows us to learn whether the signer was competent and able to understand what he was doing when he signed the Will and not coerced into signing.
It also allows us to learn whether state law was followed in the process of writing and then signing the Will – probate law varies widely from state to state (for example, some states allow handwritten wills…some not; some states allow a signer to exclude his children, some not; all states require that provisions be made for the benefit of a spouse). It is perilous to sign a Will without fully understanding the law (including state and federal tax laws). It is always best to work with an attorney who is experienced in the probate area when you are drawing up a will, probating a will, challenging a will, considering creating a trust, choosing a trustee or appointing a guardian for the benefit of your children.
How to Probate a Will
In order to probate a Will, each state has a legal process that must be strictly followed – and this process is very different from state to state. The first step always is to find the original will (though in some states, in some very limited circumstances, a copy can suffice if the absence of the original can be adequately explained – such as destruction from a natural disaster). A Will is a singular document – meaning that only one original is signed and so keeping that original Will in a safe and secure location is critical. Many people keep their last will and testament in a home safe or a fire and waterproof box along with a file of relevant documents. Other people keep their original Will in a vault maintained by their lawyer – usually, the lawyer who prepared the Will. In some cases, the original Will is on file with the probate court. The best way to ensure your family will find your will is to have a conversation in advance about its location or to leave a letter of instructions to your family telling them where all of your important papers are kept.
It is also important to investigate whether the document found is the most recently signed will. People sometimes create different wills as their circumstances change (divorce, new marriage, the death of a spouse, or new children). If there have been previous wills, the new will generally state that it revokes all previous wills. It is also possible to create a codicil to an existing will, which is like an addition or an amendment to it. In that case, you need to find the codicil and the will.
To understand how probate works, you should understand the legal steps. The process is very state law dependent. In all states, the original will is filed with an application for probate by the executor named in the Will. A probate lawyer will prepare the necessary documents – which require specialized knowledge of that state’s laws. The court examines the will and determines if it was signed and witnessed in accordance with state law. The assets of the estate must then be accounted for, and all the bills must be paid (including taxes). Once this happens, the remaining assets are distributed to the heirs according to the provisions in the will.
How Long Does Probate Take?
Probate generally can take at least a few months, but most often it can take much longer, depending on the backlog in the court and the complexity of the estate. If there is a probate challenge (someone contesting the validity of the will), the process will take longer. The more assets, the longer the case generally will take. There are also specialized tax laws affecting estates depending on the applicable state law and the size of the estate.
Why Should I Hire a Probate Lawyer?
Probate law is complicated. But if your loved one has passed and left very few assets, such as some personal belongings and a small bank account, you can in most states file for a small estate administration, a streamlined process that has few fees and most often does not require an attorney. In general, though, estates that include a home, investments, trusts, vehicles, or valuable assets should be handled by an attorney and must go through the probate process. However, even estates where all assets pass to designated beneficiaries should prudently be discussed with a probate lawyer (these include estates with assets in joint names, or having “payable on death” beneficiary designations or with named beneficiaries, such as with life insurance and retirement accounts. There are various tax planning opportunities that are lost if not timely done after a loved one’s death, and these strategies are legally complex. Getting them wrong can result in unintended and expensive results. There are not only concerns about making sure the will is proven to be valid, but there are also estate tax issues that must be addressed. A probate law attorney is comfortable with all the legal requirements involved in filing a will, proving it to be valid, appointing an executor and appointing a trustee, accounting for the estate, and distributing the assets. It is important that these things be done correctly and if they are not the executor can be legally and financially liable. If there are any questions about the legality of the will, the existence of other wills, or the competency of the testator, you need an attorney to help you navigate those issues.
Questions to Ask When Hiring a Probate Lawyer
When you need a probate lawyer you are likely experiencing the loss of a loved one and it is, therefore, an emotionally difficult time. You need to find an attorney who can competently handle all of the details of the estate for you. Finding the right probate attorney is important – while the relationship is professional, it is also personal. You should make an appointment for a consultation with an experienced lawyer to find the one that is right for you. You may wish to use the attorney who prepared the will, or you may find someone else you prefer. Ask how many probate cases the attorney has handled in the past year. Find out how long the case will take. Ask what your responsibilities are if you are the executor, and how you can best help the case move forward.
Probate Costs
You will also need to ask about fees. The lawyer will charge a fee for handling the estate, which depends on the size and complexity of the estate. There are also court fees, and there may be additional costs for appraisals, bonds, and accountant fees.
When you need help with probate law, call Howard Law LLP. Our skilled attorneys with years of experience are available to speak with you today.
Just give us a call at 201-488-4644 or contact us using the form below.