When to Get a Lawyer for Estate Probate Problems

By Anna Green

After a loved one’s death, hiring a lawyer and potentially entering into a legal dispute is not an appealing choice. Taking a case to probate court can also be an expensive and lengthy process. The probate process can be complex, however. Laws for estate and probate matters differ from state to state and in certain cases, trying to handle complicated or contested estate problems yourself may be even more costly and time consuming.

Assets and Debts

If your family member passed away but did not have a will, it may be necessary to hire a lawyer, especially if the deceased individual had many assets and debts. In such cases, it may be difficult for you to determine which debts are valid and how best to pay off these debts from the estate’s funds. An attorney can provide advice on how to handle these matters. Likewise, if your family member had stocks, real estate investments or other significant assets, you may need an attorney to help you have these assets appraised to prepare for probate court.

Conflicting Family Interests

When your loved one dies without preparing a will, family members may have disputes about who will become executor of the estate and handle debts and asset division. If the family members cannot agree on who will act in this role and decides to take these concerns before a probate judge, it may be helpful to hire a lawyer to protect your interests. Similarly, if you are acting as executor of the estate but have family members who are questioning your choices and actions, an attorney can help you ensure that you are acting properly and do not compromise your rights.

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Inappropriate Actions

If the court appointed another family member as executor and you believe that he is acting inappropriately in this role, hiring an attorney can help you address your concerns under your state’s laws and procedures. For example, if the executor is not filing income tax returns for the estate or is not paying off the deceased individual’s debts, a lawyer can help you address these issues.

Contested Wills

If your loved one dies with a will but another family member or potential beneficiary contests it, hiring an attorney can help you protect your rights. Likewise, if you want to contest a will--for example--if you believe your loved one was not of sound mind when she created her last will and testament, an attorney can help you understand your options and the procedures for contesting the will.

Understanding the Law

Although there are many self-help resources for helping you navigate the probate process, you may still have unanswered questions or be unsure about your rights and responsibilities, particularly if you are serving as executor of the estate. In such cases, hiring a probate lawyer is a good way to protect your rights to your loved one’s estate and ensure that you are acting responsibly and ethically.

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Who Enforces the Execution of a Will?

In drafting your will, you may appoint a person to serve as your executor, also known as a personal representative. This person will have the responsibility of carrying out your wishes pursuant to the will. Because the executor has a number of responsibilities and can be held personally responsible if they are not properly carried out, carefully consider appointing someone who is trustworthy and capable of carrying out the somewhat complicated probate process.

What if the Executor of a Will Is Dead?

The person you name in your will to manage your estate is called the executor. Other terms include fiduciary or personal representative. This person's duties include gathering your assets, paying taxes and bills owed by your estate and distributing the remaining assets to your beneficiaries according to the terms of your will. If the person you named as the executor is not available or is unwilling to serve for any reason, your state's laws allow the court to appoint someone else as executor.

How to Name an Executor or Personal Representative

An executor, also called a personal representative, is the person in charge of distributing property to heirs and settling a decedent's estate. A female appointed to handle an estate is sometimes called an executrix. Naming an executor in a will avoids the need for a court-appointed executor after death and usually saves the estate money. This is because court-appointed executors generally charge high fees in contrast to relatives or friends who are chosen to serve.

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