A probate lawyer is useful in any event involving the probate court system. Each state establishes its court system differently, with some states assigning probate duties to the trial court while others maintain a separate and distinct probate court exclusively for handling probate matters. Probate lawyers work primarily with estate administration, including estates with or without a will or trust in place. If the probate court handles guardianships and matters related to mental illness, a probate lawyer may also be helpful in those proceedings.
When a person dies, the probate court is responsible for overseeing the process through which the person's real and personal property is divided and distributed. This process is known as administering the estate. Due to the extensive filings and deadlines involved with an estate administration, most surviving family members prefer to work with a probate lawyer through this often-emotional process. A probate lawyer handles estates with wills and those without. The estate of a person who dies without a will is divided according to the state laws of intestacy. In addition, a probate lawyer will handle all claims against the estate and ultimately the distribution of property to heirs and beneficiaries.
Many probate lawyers also work with clients wishing to set up an estate plan. Estate planning includes the execution of a will, power of attorney or advance directive. Individuals with more complex estates may wish to place property into a trust in order to avoid certain state or federal estate taxes. A probate lawyer will have a strong working knowledge of the state laws regarding wills and trusts as well as an understanding of the consequences of an inadequate estate plan.
Guardianship and Conservatorship
Guardianship and conservatorship proceedings take place in some state probate courts and these proceedings generally require the help of a probate lawyer as the process is heavily regulated by state statute. Guardianship and conservatorship is appropriate for any minor or incapacitated adult in need of someone to take control of their finances and personal management. The probate lawyer will file the petition for guardianship or conservatorship, make certain all interested parties are notified of the proceeding and represent the interests of the proposed guardian or conservator in the hearing.
Mental Health Matters
Some probate courts, including those in Michigan, Ohio and Texas, handle matters relating to the mentally ill. Proceedings that take place in mental health court involve involuntary emergency detention without a warrant, also known as a civil commitment, which is followed by admission to a psychiatric facility. These proceedings are available when the person is likely too dangerous to himself, dangerous to others, infringing on the rights of himself or others, or is unable to take care of himself.