Probate can be a complex and time-consuming process, and having a knowledgeable probate attorney by your side can make a world of difference. While it may be tempting to handle everything on your own, there are several reasons why hiring a probate attorney is in your best interest.
Probate is the legal procedure you must go through to settle the estate before distributing the property to the named beneficiaries. There are many steps to the probate process, and each must happen correctly before a resolution. It is essential to hire a probate lawyer as soon as possible to ensure the proceedings run smoothly.
When a loved one has passed away, they may have left behind specific property. If they had a spouse, that property automatically passes to them under most circumstances. If there is no spouse, the beneficiaries named in the will can inherit the property after the conclusion of the probate process. You are better off when you hire a Vero Beach probate lawyer to guide you through the process because it can keep challenges from arising that can complicate your family's life immeasurably.
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How the Legal System Handles Assets After a Loved One Dies
When someone passes away, they will have their assets broken down into two general categories:
- Transfer on death accounts automatically passes the property to the named beneficiaries without the need for any further court process. These accounts can include bank accounts, investment accounts, and life insurance. Creditors may still get payment for their claims, but the process quickly divides and transfers these accounts after providing proof of death to the financial institution.
- A will determines how to divide the property among the named heirs and can usually cover property to which there is a title. There needs to be a transfer of title to the heirs, but this can only happen after the entire legal process.
What Happens During the Probate Process?
Probate is a legal process that accomplishes the goal of transferring the property to beneficiaries. Several things happen during the probate process, including:
- Locating the will and filing with the probate court as part of the initial paperwork
- Establishing the validity of the will
- Appointing the named personal representative by the probate court to handle the estate as the executor
- Having the personal representative locate all of the property of the estate and file it in a listing with the court
- Having the personal representative publish notice of the probate so the creditors can make claims for owed money
- Paying creditors their claims (assuming that there are no disputes about the nature or amount of the debts)
- Having the personal representative sell the estate's property or prepare to distribute it to the heirs
- Paying the beneficiaries their portion of the estate's property per the terms of the will
As you can see, several steps to the probate process will occur over time. It certainly does not happen overnight, mainly because it involves the court, and many potential pitfalls can cause stress for a family.
Of course, this assumes that a loved one had a will when they passed away. Some people may not have made a will when they died, or the will they signed is invalid. When someone dies without a will, they are intestate, and their estate will need to pass through the court system before distributing the property. Here, state law will control how to divide the property by applying formulas in the law.
The Probate Process Can Be Challenging, and You May Lack Knowledge
You rarely need to go through the probate process in your life. If you have an estate that needs to go through probate, this may be your first time dealing with this situation. However, you may have also heard of horror stories that other family and friends went through when trying to settle an estate through the probate process. Under no uncertain circumstances do you want this to be you; the last thing that you want to deal with when you are adjusting to the loss of a loved one is having to go through an archaic and complex legal process that can take up your time and energy.
A probate attorney can provide valuable guidance and support during an emotional and overwhelming time. Losing a loved one is never easy, and the probate process can compound the stress and grief. Having an attorney who understands the intricacies of probate law can alleviate some of the burden, allowing you to focus on grieving and healing.
Any Mistake Can Delay the Probate Process
While probate involves a lot of paperwork, the process is about far more than that. Of course, you must correctly file all the paperwork. If not, there will be numerous delays in the process. Probate will ordinarily take six to 12 months, but it can stretch beyond that if the court cannot process the paperwork. Even a tiny mistake can mean interminable delays, as judges will not give any extra consideration to those who try to go through probate without an attorney.
A probate attorney is well-versed in probate law and can navigate the intricate legal procedures. They have the experience to efficiently handle the necessary paperwork, filings, and deadlines, ensuring they complete everything correctly and in compliance with the law. A probate attorney can help avoid costly delays or mistakes that may hinder the distribution of assets or even lead to legal disputes.
Probate Attorneys Assist Numerous Participants in the Process
Probate attorneys help the estate executor and individual beneficiaries when they have legal issues with the estate. The executor owes a fiduciary duty to the beneficiaries, meaning that they must exercise ordinary care in dealing with any issues relating to the estate. In other words, they can be liable if they negligently manage the estate's affairs. In addition, the executor must avoid conflicts of interest (or disclose them if they exist so the beneficiaries can decide whether to allow a proposed transaction) and put the estate's interests ahead of their own. Similarly, if the executor violates the duty of loyalty, they are also liable.
Executors Often Need a Probate Attorney to Protect Themselves
If an executor makes a mistake or consciously does something wrong, they can end up personally liable and have to pay out of their own pocket. Accordingly, it may be in the executor's best interest to get legal help if they have questions about complex legal issues. Paying the probate attorney can come out of the estate's funds, and it may be better for the executor to be safe and not to "wing it" because it can cost them dearly.
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Probate Attorneys Help with Will Contests
At the same time, individual beneficiaries may need the help of a probate lawyer to protect their legal interests. You are placing a great deal of trust in the executor, and you are relying on them to make the right decisions. However, you may have concerns with the will and the appointed executor.
A probate lawyer is undoubtedly a must if any issues can lead to a will contest. An interested party can challenge the terms of the will under certain circumstances, and this challenge will begin a legal process that can lead to a hearing in court.
Common reasons for will contests include:
- Lack of testamentary capacity: The person making the will must have the proper capacity to enter into a binding document. In some cases, the testator may have dementia or another illness that may take away their testamentary capacity to make a will properly. There is such a point where it is too late to make a valid will.
- Undue influence: There may have been a person in a position to exert improper influence on the testator. For example, a family member who was a caregiver may have pressured the testator to change the will in their favor to give them more property or to cut out certain family members.
- Fraud: A legal document is invalid when fraud induces someone to sign it. Someone may have tricked the testator into signing a will they otherwise would not have. However, someone will have a high burden to prove the fraud necessary to invalidate a legal document.
- Forgery: The will must first undergo authentication to be valid. An interested party may contest the will if they believe it to be a forgery or not authentic. Then, the entire will can get thrown out and invalidated.
Will contests can be very drawn out and bitter; you can expect them to tear the family apart now and in the long run. A will contest is the same as any other type of litigation, meaning you must go through a lengthy legal process before the case even goes to trial. The bottom line is that a will contest can take years and keep the estate from getting settled for quite some time. In the meantime, it can drain resources that may have gone to the beneficiaries but instead go to pay the legal costs of a trial.
A probate attorney can help protect your interests and ensure they protect your rights throughout the probate process. They can advocate on your behalf, mediate any disputes, and carry out your loved one's wishes according to their will or the state's intestacy laws. These tasks can be particularly vital if there are potential conflicts among beneficiaries or the estate is complex with various assets and debts.
Early Involvement of a Probate Lawyer Can Lessen the Risk of a Will Contest
The best way to handle a will contest is to avoid it entirely in the first place. When money and property are at stake, family members can experience complex relations with each other. Simple disputes and rivalries can spiral out of control quickly. Emotions can get the better of people in many circumstances, especially when the family is dealing with grief.
A probate lawyer's early involvement in the case can reduce the chances of a will contest. The probate attorney can represent one party to the dispute (they cannot represent more than one party at a time) and advocate for their interests. The probate lawyer can help their client negotiate with the other parties or their attorney and even assist their client in reaching a settlement that can avoid litigation altogether.
You Invest Money in Getting Legal Help to Make Your Life Easier
Hiring a probate lawyer is an investment that you can make that can save you more money and hassle in the future. If you have the choice of trying to handle your legal matter on your own or getting help from an experienced probate lawyer, you should opt for the latter. Not only will a probate lawyer reduce your stress, but they can also increase the chance of a timely and successful resolution of your probate matter. You and your family can save yourselves from unnecessary worry during a difficult time.
If you still need to consult with a probate lawyer, now is the time to get in touch. You can learn what a probate attorney can do for you, and they can answer specific questions. They can handle all the details of your probate matter, sparing you from involving yourself in the matter.
The last thing you ever want is to launch your family into a complex legal process with potential pitfalls. These challenges can happen because you do not know how to handle the probate process or individual family members can raise issues when they believe there is a threat to their interests. Your probate lawyer will be there to answer any questions that you have and serve as your guide to the legal process.
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In conclusion, hiring a probate attorney is a wise decision to save you time, money, and unnecessary stress. Their experience and guidance can streamline the probate process, protect your interests, and provide peace of mind during difficult times. If you need probate assistance, do not hesitate to reach out to a qualified real estate attorney who can help guide you through the process with confidence and efficiency.