Lake Tahoe Attorney Blog

19Aug, 14

Probate lawyers are trained and state-licensed law practitioners whose area of specialization is to facilitate the inventory  of the estate (possession and worldly goods) of a person who died (decedent) and to ensure the fair and just settlement and distribution of these to his/her heirs or beneficiaries and their personal representatives (or executors)(wills.about.com ). This state-licensed practitioners need a mastery of the laws of individual states within his/her area of specialization given the fact that while the constitution and federal laws operate nationwide, in the United States, state laws are passed to augment national legislation. “Possession and worldly goods,” on the other hand, include personal property, real estate, investments, stock and bonds, bank accounts etc. Therefore, the laws that govern this (probate) process basically depends on the laws of the state where the person resided and died and other states where his/her real estate properties are located (wills.about.com )  Contingent  on this issue is whether the decedent executed a written will and testament (or testate) or not (intestate) (wills.about.com ).

Role of Probate Lawyers in the Probate Process

A practitioner can assume the following possible roles in the probate process: as an adviser to the personal representative of the estate or as a representative of a beneficiary should lawsuits arise and the provisions of the will are contested (wills.about.com ). The volume of documentation work typifies the task of the probate lawyer who advises a personal representative from start to finish: This includes an inventory and classification (probate and non-probate) of the properties and their valuing in case of sale, the presentation and filing of the required documents in the probate court, the retrieval of the values of insurance coverage and bank accounts, the disposition and sale of goods to cover payment for inheritance, income, and other taxes,  the configuration of a just and equitable scheme of distribution of the property (after taxes and payment of debts and bills) among the beneficiaries, and ensure the legal transfer of the remaining property to the heirs (wills.about.com ).

Thus, in sum, the probate court acts in behalf of the decedent to facilitate the legal distribution of existing property to the beneficiaries, pay the required taxes derived from the income of the estate and debts and other obligations through the completion of the tasks undertaken by the probate lawyer. Simply put, the probate court acts to execute what is in fact articulated in the last will and testament of the dead person.

English in tradition, the probate process legalizes the last will and testament of a decedent and proceeds to facilitate its execution (www.wikipedia.org ). Thus, it is in the context of probate proceedings that provisions of the last will and testament might be contested by the beneficiaries, the heirs, the creditors, or, if and when, by the pertinent government institution. Where necessary, the court might appoint a temporary administrator to handle the assets prior to their final distribution (www.wikipedia.org).

Obstacles in the progress of probate proceedings which need to be resolved by the probate court usually arise from complex situations like multiple ownership of property, untitled property, multiple signatories for bank accounts, marital claims, division of ownership of business, creditors’claims, emergence of non-traditional beneficiaries and claimants etc.

Existing probate practices and processes are highly influenced by tradition depending on where the proceedings take place. There are normative and shared practices among the nations of the Commonwealth from England to Canada to India. In these contexts with some variations, the Family Division of the High Court of Justice normatively assigns an administrator to inventory, dispose of the property when needed, pay all obligations, and distribute the remaining assets among the beneficiaries (www.wikipedia.org). On the other hand, in the United States, state laws guide the probate process although many states have existing legal resolutions to cases that might arise from probate contests (www.wikipedia.org ).

Ultimately, in the instance of the non-existence of a last will and testament, the known heirs might simply file an intestate document to a probate court for the division of existing properties that are categorically classified as probate and with the assistance of the probate lawyer “re-title” the properties in the name of the heirs.

Professionals, on the other hand, advice individuals to execute a last will and testament while alive using the expertise of a probate lawyer to avoid the complexities that result out of conventional probate proceedings (www.freefrombroke,com)

References  

Craig, Glenn (n.d.) What is a Probate Lawyer and When Would You Use One?  Available from: http://www.freefrombroke.com  (Accessed on 11 August 2014)

Garber, Julie (n.d.) What is a Probate Lawyer and What does a Probate Lawyer Do? Available from: http://wills.about.com  (Accessed on 11 August 2014)

Probate Available from: http://wikipedia.org  (Accessed on 11 August 2014)

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