What is a Probate Attorney and When Do I Need One?

Life is hard enough when someone you love dies. If you and your family are fortunate enough to inherit an estate, the last thing you need is confusion around who gets what.

This is where an estate or “probate” lawyer can be a tremendous help to your family’s situation.

When you lose a loved one, a probate attorney can help manage the lengthy and confusing process of dealing with their estate. Here’s everything you need to know.

The Role of Probate Attorney

So what is a probate attorney, exactly? To start with, it helps to understand a little bit about probate law.

Probate law refers to the legal process of distributing an estate’s assets. Probate also applies to the court where matters of estate take place. Interestingly, not all of a deceased family member’s assets fall under probate law.

Certain assets like IRAs, 401-Ks, and life insurance policies filed under the estate holder’s name, are “non-probate.” They can’t get allocated like other assets without going through probate court.

“Probate” assets such as business interests, jointly or solely-owned assets or trust assets get distributed to beneficiaries as dictated by a will.

Enter the role of the probate attorney.

Also known as an estate attorney, a probate attorney handles wills and estates. From estate planning to advising on the power of attorney, a probate lawyer can play many vital roles.

To start with, you don’t have to wait until an estate is in flux to hire a probate attorney. A probate attorney can help you prepare for the future.

Estate Planning

One of the critical tasks of a probate lawyer is to assist in estate planning. If you are fortunate enough to be reading this with a loved one still alive, know that it’s never too early to seek the help of an estate attorney.

The three main pillars of estate administration you may want to consider are:

1) Collecting an Estate’s Assets

Assets may exist across many different areas. How much of the assets are liquid? Are there assets tied up in real estate, stocks, or other types of investments?

With the help of a probate attorney, you can start to tally up all of the assets that may qualify as probate.

2) Paying Off Debt and Final Expenses

Does your loved one still have debt that will remain after they pass? Is there enough in the estate to cover this debt?

The unfortunate truth is that many people die with debt. Most of the time, the children are not responsible for the debt unless their name was attached to it. Often, the state law will wipe out whatever debt doesn’t get settled.

You may inherit far less than you anticipated, so it’s important to get a handle on what you can realistically expect as a beneficiary.

On top of debt, an estate may cover final expenses, such as funeral arrangements, estate taxes, and, yes, even a probate attorney’s fees.

3) Distributing Assets

Once you establish debt repayment, then comes the ever-important question of who gets what remains of the assets. A probate lawyer can help you with the critical task of drafting a will.

A will may be the single most important legal document in an estate’s fair allocation. A will and last testament are a reflection of the benefactor’s wishes and vision of how they want their legacy managed.

A well-drafted will can save months — even years — of litigation, as well as the extra burden of family drama that can come when it’s unclear how to administer an estate.

At O’Bryan Law, estate planning is our specialty. We can make sure your family gets the security they deserve when the time comes to handle your or your loved one’s estate. Our services include:

  • Will Preparation
  • Guardianships and Conservatorships
  • Health Care Proxies and Directives
  • Asset Protection Advice
  • Trusts (including trusts for special needs and disabilities)
  • Living Wills
  • Durable Powers of Attorneys
  • A Complementary Checkup on Existing Estate Plans

Contact us today to see how we can help you get the peace of mind you deserve.

A Probate Attorney’s Role in a Planned Estate

For those fortunate enough to be dealing with a properly-planned estate, a probate lawyer can still provide valuable guidance.

Act As Executor of an Estate

A probate lawyer can assist with “executing” or settling the estate.

Vital matters, such as notifying all of the beneficiaries (including estranged family members) of your loved one’s death, gathering and appraising all assets, and procuring a copy of the will, are all part of settling an estate.

Even seemingly mundane matters, like contacting credit card companies, the post office, utility companies, banks, mortgage companies, or other businesses that your family member dealt with are all part of this closure process.

Having a probate lawyer by your side for guidance may be one of the best investments you can make. When it comes to the will, it’s best if the lawyer who drew it up maintains a continuous presence so that there is no question as to where it resides or how to interpret it.

Questions regarding assets often become issues for probate court. For example, if an asset, such as a piece of land, remains in the deceased member’s name. The law requires a probate court proceeding to transfer the asset to other beneficiaries.

The types of issues requiring probate court can vary by state, so it’s essential to have a knowledgeable attorney to help you throughout the probate process. You can find the best probate attorney in Michigan at O’Bryan Law.

Advising Powers of Attorney

Aside from guiding your family through the labyrinth of procedures required to settle an estate, a probate attorney can provide power of attorney advice.

Often granted to a family member, the power of attorney carries the hefty responsibility of fulfilling the will by making sure assets get distributed according to the member’s wishes.

A probate lawyer can act as an advisor to whoever plays the part of “agent” of the power of attorney. Carrying out the power of attorney can come with significant stress, especially if there are family members who dispute a will or decide they deserve more than what they were given.

In certain circumstances, a probate lawyer can play the role of mediator, communicating amongst family who may not be talking to each other out of animosity.

Managing an Unplanned Estate

If your loved one did not leave a will, or if you suspect a will was created hastily or without legal counsel, you will need the help of an estate attorney.

If a person dies and leaves no will, the law deems that person “intestate.” While each state has its rules on how to deal with intestate cases, you will need the guidance of a probate lawyer to deal with the complications that come with intestacy.

If there is no will to guide the administration of an estate, a probate attorney will play a more significant role in an estate’s settlement. However, even if there is a will, it may have been signed under duress.

Unfortunately, some people will take advantage of a loved one’s fragile, vulnerable state, mainly if that mental state includes dementia. If there is a suspicion that a family member was pressured or manipulated into signing a will they did not understand, a probate lawyer can examine the will and assess if it is valid or not.

If an estate does have a will, the power of attorney’s agent may not want that role. If the power of attorney agent seeks to abandon this responsibility, he or she must officially renunciate it.

There are some limitations to renunciation, though. If a probate court has already granted someone the role of executor or if she already started taking actions to settle an estate, she cannot simply abandon this role.

Renunciation is primarily for people who assumed the power of attorney responsibility during the estate planning stages but may not be able to carry out that role. They may be located elsewhere or otherwise be unfit to do the job.

If you or another beneficiary want to contest your role as the agent of power of attorney, you will need a probate lawyer’s counsel to navigate the court process to renunciate.

Guidance At Your Side

Some estate procedures, such as probate court, require legal counsel. Other matters of managing an estate, such as dealing with taxes, debt, and asset allocation, can significantly benefit from the presence of an experienced wills and probate attorney.

If your family expects to need help with managing a loved one’s estate, whether they left a will or not, our legal expertise can guide you in the right direction.

Don’t think you or your loved one has to be knocking on heaven’s door to begin estate planning. The time to start is now. Contact us today to make sure your family gets the peace of mind they deserve.

Davison, Michigan estate planning attorney Sean O’Bryan has been helping families for 30 years work through the complicated issues of trusts, wills & estates.