Lawyers

LOTS OF LAWYERS (ATTORNEYS)

Lawyers, Lawyers, and more Lawyers.  In Probate there are lots of lawyers.

There may be a situation where you can get by without a lawyer in probate; like if you have a really simple straight forward case.  Then, again the nature of probate itself does not lend itself to doing things in a simple manner.  There are some states that have introduced what they call “simple forms”, which tries to make the process easier based on the value of the assets.

Typically, lawyers are involved in the probate process.

INFORMATION NOTE:
This information is to help people who do not have a living trust, power of attorney or health care directive.  If you do have those documents, make sure they are up to date; and that you have funded your living trust.

A Contested Probate Brings In More Lawyers

When someone decides to object, challenge or contest the probate, then you get more lawyers involved. The person bringing the objection is very likely to have a lawyer.

Typically, in probate everyone has a lawyer; especially at the start of the process.  When the process drags on for many months and years; and the money starts to run out; you will find that lawyers come and go, but mostly go.

Oh, probate does not stop because you no longer have a lawyer.  It is at that point where you will represent yourself, concede, truly try to negotiate a resolution, or just accept the decision made by the probate court.

Lawyers to Probate When there is NO Will

So, someone died and did not leave a will, and that person has assets like a house, vehicles, investments, etc.  Also, that person has money in the bank; but guess what, that person did not name a “Pay on Death” beneficiary on their bank accounts.

In order to legally do anything with that person’s assets, you must go to probate court.  While you may get away with selling the car or other vehicles (if you have the title), you will not be able sell or take any ownership of the house or any other real estate without going through probate.  Probate is the legal way to transfer real estate titles and deeds.

When there is no will, lawyers are involved to press the claim(s) of their clients.  In these proceedings you have the following lawyers:

1. Lawyer for the Deceased’s Family

This lawyer:
— is hired by the dead person’s family; which could be the spouse, children, relatives, etc.

2. Lawyer for Individuals Staking a Claim

This lawyer:
— is hired by individuals (or group of people who have gotten together) to make a claim against the dead person’s estate.

What about Creditors, people the deceased owes money to?  Do they file a claim?  Typically, creditors have already been given notice and have likely been paid, or payment arrangements have been made, before the deceased’s case in heard in probate court.

Like a lot of people, you probably don’t even read those notices in the back of your newspaper; that is, if you even still get or read the newspaper.  Almost immediately after someone dies, the estate process is opened.  One of the first things done is to file notice of the person’s death and to ask all creditors to come forth.  So you see, creditors learn about the death almost immediately.

When there is NO Will, there is lots of time spent tracking down heirs, verifying claims, appraising assets, etc.  Next, there is more time spent selling assets.  Then you spend more time litigating who should get what.  Yep, everyone has lawyers to fight for their interest.

Lawyers to Probate When there IS A Will

You have a Will, so why would your Will be in Probate?

Your Will goes through probate so that assets can be legally transferred to the person or people you want to have them.  The difference is that your Will dictates who and how your assets should be distributed.  Without a Will, the probate court judge gets the final say on the who and how your assets will be distributed.

INFORMATION NOTE:  To avoid having to go to probate to distribute your assets (or probating your Will), you can setup a Living Trust.  A living trust helps you to avoid probate, and it keeps information about your estate private.  Living Trust documents are more complex, and at this time we recommend that you have an estate attorney help you to draft those documents.

When there is a Will, lawyers are involved to get the Will filed and validated by the probate court. Lawyers can also be involved to file claim(s) on behalf of their clients, who maybe contesting the Will.  In these proceedings you have the following lawyers:

1. Lawyer for Person Filing the Will

This lawyer:
— is hired by the person claiming to have the deceased’s Will

2. Lawyer for Individuals Opposing the Will

This lawyer:
— is hired by individuals (or group of people who have gotten together) to make a claim that the Will is not valid.

When there is a Will, time is spent validating the Will; especially if you have people filing claims objecting to the authenticity of the Will.  Next, there is time spent verify assets, ownership and liabilities.  Then time is spent determining the distribution of the Will’s assets.  And finally, assets are distributed.

Even though you go to probate if you have a Will, it is still best to have the Will.  Because the Will speaks for you, and the Will states what you want done, after you have died.

 Lawyers to Probate an Incapacitated Person

Probate of an incapacitated person means that you are filing a petition in probate court for either a guardianship, conservatorship or to be both a guardian and a conservator of a person.

In these proceedings you have the following lawyers:

1. Lawyer for the Incapacitated Person

This lawyer:
— can be appointed by the court;
— the incapacitated person can hire their own lawyer; or
— someone on behalf of the incapacitated person can hire a lawyer for the incapacitated person.

Now, immediately, you say, if the person is incapacitated, then how can that person hire their own lawyer.  Well, first the probate court has not yet declared the person to be incapacitated; therefore, if that person has enough awareness they can hire their own lawyer.

Sometimes what happens is that the person that does have enough awareness, ignores the notices from the court, because they think, “What is this.  I don’t need anyone, especially a court telling me that I need a guardian or conservator.” So they ignore the probate court notices.

IT IS A HUGE MISTAKE TO IGNORE NOTICES FROM PROBATE COURT. This is because the probate court will likely proceed without you.  Remember, that someone, not you, file to bring the probate proceedings.  And, that someone has said that you are incapacitated; and that someone very likely has a lawyer.  Therefore, the court proceeds on the basis that you are likely incapacitated.  YOU MUST SHOW UP to probated court to preserve your rights.

2. Lawyer for the Person Petitioning to be Guardian

This lawyer:
— is hired by the person who wants to be the guardian

When bringing a guardianship petition, you should hire a lawyer to write and file the petition; and to represent you; especially if you have never done a probate case before.

While a number of courts provide the forms for the proposed guardian to complete and file themselves, there are a number of court procedures, filings, deadlines, and documents required.  It is better to get every thing done correctly the first time, to avoid delays, additional fees, and improve your chance of winning your case.

3. Lawyer for the Person Petitioning to be Conservator

This lawyer:
— is hired by the person who wants to be the conservator

Normally, the person petitioning to be conservator is the same person petitioning to be guardian.

When bringing a conservatorship petition, you should hire a lawyer to write and file the petition; and to represent you; especially if you have never done a probate case before.

Same as the guardianship process, the conservatorship process has it where some courts provide the forms for the proposed conservator to complete and file themselves.  As such, there are a number of court procedures, filings, deadlines, and documents required.  It is better to hire a lawyer to get every thing done correctly the first time, to avoid delays, additional fees, and to improve your chance of winning your case.

4. Lawyer for the Person Objecting to the Guardianship and/or Conservatorship

This lawyer:
— is hired by the person who objects to the person asking to be the guardian and/or the conservator

Typically, the person who objects to the guardianship, also very likely objects to the conservarorship.

Anyone can object for any reason to the guardianship and conservatorship petition.  You will present your case for the objection and the probate judge will decide.

WORD OF CAUTION  with all the evidence and great arguments that your lawyer may do for you, the probate judge can still select a total stranger, instead of you (person bringing the petition) and you (person objecting to petition).  Therefore, analyze your positions and options very carefully.

More About Lawyers

Do You Need a Lawyer?

If you are getting started or involved with a probate, you should at least consult with a lawyer, so that you understand the process, pitfalls, situation, and potential issues.  If you are new to probate, yes, you should consider hiring a lawyer.

You Can Always Change Lawyers; Should You?

If you are not getting the results you want in the probate proceeding, you should consider talking with another lawyer:
— to understand if your results or court rulings thus far are typical for your situation
— to determine if there are other options

You can avoid all these lawyers, and the probate process itself by having your documents in place.

Probate Court  |  Jackals