Throughout the course of your lifetime you will likely need the assistance of an attorney more than once. When you do find yourself in need of legal advice or assistance, it is important to consult with the right type of attorney because not all attorney handle the same type of legal issues. Just as you would not consult with a pediatrician if you had cancer, you don’t want to consult with an attorney who specializes in criminal law for a divorce. In order to know which type of attorney you need, however, you need to know what type of legal matters the various attorneys handle. For example, what does a probate attorney do and when would you likely need to hire one?
What Is Probate?
The word “probate” usually refers to the legal process that follows the death of an individual. Probate is required for several reasons, including:
- To ensure that the decedent’s Last Will and Testament is filed with the court and authenticated.
- To provide a framework by which the decedent’s estate assets can be identified, located, and valued.
- To allow creditors of the estate to file claims against the estate.
- To ensure that state and federal taxes owed by the estate are paid before assets are transferred out of the estate.
- To facilitate the distribution of estate assets to the intended beneficiaries and/or heirs of the estate.
What Type of Cases Are Handled in Probate Court?
Most states, including the State of Missouri, have a specialized probate court that falls within the larger civil court system. Not surprisingly, probate court handles the probate of estates when someone dies. As a general rule, probate must be filed in the probate court within the county where the decedent was a resident at the time of death. If someone wishes to contest a Will that has been submitted to the court for probate, the Will contest is filed in probate court as well.
Issues relating to the administration of a trust are also handled in probate court. For example, if the Trustee and/or beneficiaries of an irrevocable trust wish to have the trust revoked because of diminished assets, the petition to revoke the trust would be heard in probate court. Appointing a replacement Trustee for a trust would also be a probate court matter.
Probate court is also responsible for handling guardianship proceeding for both minor children and disabled adults. When the parents of a minor child are unwilling, or unable, to care for the child, another adult may step in and petition to be the child’s guardian. The petition for guardianship is filed in the probate court. Likewise, if a disabled adult is in need of a guardian, for his/her estate and/or person, the petition for guardianship is also heard in probate court.
What Does a Probate Attorney Do?
By now, you should have a fairly good idea of what a probate attorney does and the type of legal matters a probate attorney would typically handle. Although not an exhaustive list, some of those legal matters include representing:
- An Executor during the probate of a Last Will and Testament
- A beneficiary who wishes to contest a Will
- A creditor filing a claims against an estate
- A Trustee petitioning to modify or revoke a trust
- A trust beneficiary for anything relating to the trust
- A petitioner in an adult guardianship
- A respondent (the allegedly disabled individual) in an adult guardianship
- A petitioner seeing guardianship of a minor child.
Knowing what type of legal matters a probate attorney typically handles will help you decide if a probate attorney is the right type of attorney for your needs.
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding what a probate attorney does, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.