When Do You Need a Probate Lawyer?

By Stephanie Reid

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.

Estate Administration

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.

Estate Planning

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.

Protect your loved ones. Start My 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.

Protect your loved ones. Start My Estate Plan
Can a Non-Lawyer Bring a Will to Probate Court?


Related articles

How to Remove an Executor or Trustee for California Probate

If an executor or trustee fails to perform her various duties, California law allows an interested party to petition the probate court to remove and replace her with someone else. Several types of breach or mismanagement can lead to the removal of an executor or trustee, but the petitioner will need to be able to support his assertions before the court.

What to Do With a Will After a Death

Wills provide written documentation of the will maker's -- also called testator -- final wishes. Upon the death of the testator, the will undergoes a formal legal process known as probate. Probate helps determine the validity of the will and oversees the process of carrying out its directives. The person responsible for taking the will through probate is called an executor.

Probate Laws in Missouri

When someone dies in Missouri or dies owning property in Missouri, Missouri’s probate laws outline the procedures for processing the decedent’s estate, including determining whether the decedent’s will is valid, how to prove its validity in court, and who receives a decedent's property if he died without a valid will. These probate laws are located in Missouri Revised Statues, Chapter 474, formally known as the Missouri Probate Code.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

Guidelines for an Executor of an Estate for Indiana

Executors are individuals or institutions named in a will to oversee the transferring of property owned by a deceased ...

Missouri Probate Court Procedures

Missouri’s probate courts are divisions of the circuit courts; they handle probate issues including the administration ...

When Are Wills Made Public?

A will is a legal document that enables you to organize your affairs after your death. When you write a will, you set ...

Idaho Law Regarding Death & Probate

When an Idaho resident dies, his property may be subject to probate. Probate is the process of transfering ownership of ...

Browse by category
Ready to Begin? GET STARTED