Probate Information Center

When Do I Need A Probate Lawyer?

When a person dies, the heirs and potential beneficiaries will usually come forward with the decedent's last will and testament. Probate is the legal process of validating the will. The will is filed with the county clerk, and a petition is presented to the court asking it to validate the will.

Hiring an attorney early in the process can be valuable in heading off conflicts before they can get started. If you find yourself in the middle of a probate dispute, then you should consider hiring an experience probate litigator to protect your interests and the wishes of the decedent.

When probate is necessary

Probate is not automatically triggered upon a person's death. If a person dies and has no heirs and no will, then the estate generally escheats to the state treasury. This means that all of the decedent's assets and property become property of the state where that person lived and resided. Since there are no potential beneficiaries, there is no one to whom the property may be distributed. All unclaimed property defaults to the state.

If a person dies with heirs but no will, also called dying intestate, then the estate goes through a process similar to probate. The difference is that state intestacy laws determine how the estate is distributed instead of a will dictating distribution.

But when a person dies with a supposed will that describes beneficiaries, the will must be proven valid. The only means by which beneficiaries may validate the will is through probate. Assets and property will not be distributed unless approved by a court, either according to a valid will or according to the intestacy laws, unless vehicles to avoid probate are employed.

It is possible to avoid probate through the use of several different legal tools. While no strategy can guarantee that you will avoid probate litigation, an attorney experienced in probate litigation and estate administration can give you options for avoiding probate and probate litigation.

If you are contemplating estate planning strategies or are faced with a probate dispute, please contact an attorney.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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