Probate

When Do You Need an Estate Attorney?

Upon the death of a property owner, a legal process takes place to determine what assets the deceased had, what the value is of these assets, and how best to distribute them to creditors and heirs. This procedure is incredibly important and takes place in the court of the area where the deceased property owner lived. It takes place when there is property of the deceased that is located in other areas outside of their state of residence. This may require additional proceedings in the state where the additional property is located, as there may be different state laws regarding the estate distribution process and transfer of property ownership.

An estate attorney can help ensure that the rightful heirs receive the property and assets. An estate attorney is also referred to as a probate attorney or probate lawyer. Probate law is very complex, having an experienced estate attorney on your side is vitally important when going through the probate procedure.

Why Would an Estate Go into Probate?

An estate is probated for the following reasons:

  • Collection or identification of assets or property in the estate
  • For the protection of the property in the estate
  • To be used to pay back taxes or debts owed
  • For determining who is entitled to the estate and distribute the estate assets and property properly
  • Probate provides a way to secure a legal transfer of ownership to the one entitled to the property. This makes for a clear title on the property

Although this procedure may be considered lengthy and detail oriented, it is in place to provide assurance that all property of the deceased is accounted for, and that all debts and taxes are paid. The process, because it is so complex, is best handled by an experienced probate lawyer.

What Does Probate Involve?

The term probating an estate means that the personal representative of the estate, the responsible party, is determined. The court appoints this individual to ensure all the required duties outlined previously are complete. This representative of the estate can be an individual such as the child or spouse of the deceased, or it can be a bank or trust company. If the deceased named a personal representative in a legally binding will, that party is usually appointed by the court as the personal representative. If the deceased does not have a will, the district court will usually appoint the closest living relative as the personal representative for the estate. The functions and duties of the personal representative are as follows:

  • To ensure that all property both personal and real estate are identified and conserved. The only exception is for the homestead of a surviving child or spouse
  • Collection of all rents and payments due on the estate are also gathered. This can include claims, notes, or dividends to be paid
  • Determination of the heirs of the deceased. They will need the residence, degree of relation, and ages of any possible heirs
  • Provide time for gathering outstanding taxes or debts before distribution
  • Responsible for carrying out the orders defined by the court system in all mat­ters before appearing in court and to distribute the property to the proper parties properly
  • The main purpose is to ensure all the affairs of the deceased have been taken care of properly and orderly

Do You Really Need Wills and Trusts?

Knowing this information can help you understand why wills and trusts set up prior to death are so important. In your will, you can outline the responsible party, as well as outline who gets which assets upon your death. Have an experienced estate attorney draw up your will and trusts to ensure they hold up in court at your death.

GOTACASE can help you find an attorney who is familiar with your location.
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