There is a very good chance that at some point in your life you will need to retain the services of a probate attorney. Of course, in order to know when you need a probate attorney, you need to have a clear understanding of what a probate does. What type of legal matters does a probate attorney handle and how do you know when it’s time to consult with one?
Understanding Attorney Practice Areas
A common misconception is that attorneys, like doctors, choose an area of specialty within the law while they are still in law school. The truth, however, is that while some law students do decide what areas of the law they wish to practice while still in school, there is no requirement – in fact no option – to choose an area of specialty while in school. On the contrary, law school provides an overview of United States Constitution and federal laws. The idea is to teach students how to analyze the law and make logical arguments out of the facts of a particular case. While a student does have the opportunity to pick a few elective courses toward the end of school, doing so does not constitute focusing on an area of specialty. It is only after law school that attorneys tend to start narrowing down their areas of practice, usually as a result of practical experience. Ultimately, an attorney who has chosen to focus on the area of wills trusts, and estates and/or elder law will become a “probate attorney” because those areas of the law are most often litigated in probate court.
Probating an Estate
Without a doubt, the most common legal matter handled by a probate attorney involves probating an estate. When in individual dies, he or she leaves behind an estate. That estate is made up of all real and personal property owned by the decedent at the time of death, including all tangible and intangible assets. The law requires most estates to go through the legal process known as “probate.” The reasons why an estate must be probated include:
- To ensure that all of the estate assets are identified, located, secured, and valued.
- To allow creditors of the estate to file claims against the estate before estate assets are transferred out of the estate.
- To ensure that all state and federal taxes owed by the estate and/or the decedent are paid.
- To effectuate the legal transfer of estate assets to the intended beneficiaries and/or heirs of the estate.
If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in the Will is in charge of overseeing the probate process. If the decedent died intestate, or without a Will in place, someone must volunteer to be the Personal Representative (PR) of the estate, with the PR serving essentially the same function as an Executor. Overseeing the probate of an estate can be extremely complicated and time consuming which is why most Executors/PRs retain the services of a probate attorney to assist them throughout the process. A probate attorney might also represent a beneficiary or heir who has decided to contest the Will admitted to probate or a creditor who has filed a claims against the estate. In essence, a probate attorney could represent any of the parties involved in the probate of an estate.
Probate courts also typically handle guardianship proceedings. Guardianship is a legal relationship whereby one person is appointed to make decisions for another person (the “Ward”) because the ward is unable to make them himself/herself either because the Ward is a minor or as a result of the Ward’s incapacity. Therefore, guardianship may be obtained over a minor or an incapacitated adult. A probate attorney might assist a family member, or other concerned adult, to obtain guardianship over a minor whose parents are unable or unwilling to properly care for the child. If the proposed Ward is an adult, a probate attorney might help an adult child, or other loved one, to obtain guardianship based on the Ward’s physical and/or mental incapacity caused by a disability or the natural aging process.
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding probate, contact the experienced St. Louis probate attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.