If a loved one recently passed away, you are undoubtedly still grieving the loss. Although it is difficult to do, there are practical and legal steps that must be taken when someone passes away. Among the most important of those is to initiate the probate of the estate. If you will be responsible for overseeing the probate process, you may be wondering if you need an attorney to help you. A Beverly area probate attorney at DeBruyckere Law Offices helps you decide if you need an attorney to assist you during the probate of an estate.
Understanding the Probate Process
If you have never been through the probate process before, you need to have an overall idea of what that process involves before you can decide if you need an attorney to help you. For the purpose of probate, a decedent’s estate consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate, and the state intestate succession laws dictate how estate assets are distributed.
Although the probate process is unique for every estate, there are some common steps in the process, such as:
- Identifying, locating, and valuing all estate assets.
- Notifying creditors of the estate that probate is underway and reviewing claims submitted by those creditors.
- Identifying, locating, and notifying beneficiaries and/or heirs of the estate that the estate is being probated.
- Defending any challenges to the Will or litigating any claims made by creditors that were denied.
- Calculating any paying federal (and state, if applicable) gift and estate taxes
- Effectuating the legal transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate.
Do I Need an Attorney to Help Me?
If you were named as the Executor of the estate in the decedent’s Will, or you are volunteering to be the Personal Representative because no Will was left behind, one of the first decisions you will need to make is whether or not to retain an attorney to assist you. You are not legally required to be represented by an attorney and there are estates where the assistance of an attorney is not truly necessary. Most often, however, it is in your best interest to consult with, and likely hire, an experienced probate attorney to help you probate the estate. To help you decide, consider the following questions. If the answer to any of the questions is “yes” you should at least consult with an attorney before moving forward with the probate of your father’s estate:
- If the value of the estate more than $25,000?
- If the estate is an intestate estate, are there heirs of the estate that you do not know and/or need to locate?
- Do you anticipate that the debts of the estate will exceed the assets?
- If there is a Will, do you have reason to believe someone will challenge the validity of that Will?
- Do you anticipate bickering amongst the beneficiaries?
- Did the decedent own assets outside of the United States?
- Did you father own a business?
- Is the estate located in a jurisdiction other than where you live?
Those questions do not represent an exclusive list of reasons why you might want to hire an attorney to help you. In fact, one of the most common reasons people hire an attorney is that they do not have the time nor the emotional energy to handle the process alone.
Contact a Beverly Area Probate Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions about the probate process in general, or if you need assistance probating an estate, contact a Beverly area probate attorney at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
Even a simple estate will take several months to probate. In general, the more valuable and complex the estate assets are, the longer it will take to probate.
As the Executor, you must defend the Will submitted for probate. The challenge will be litigated before the estate can be probated and the outcome of that litigation will determine how the estate is probated.
No. Assets such as those held in a trust, life insurance proceeds, and payable on death accounts are “non-probate” assets, meaning they bypass the probate proces.