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Probate is the legal process through which a court determines the validity of a will, and then supervises the dispersal of property to other parties. Typically the court carries this out by appointing an executor, who is then legally obligated to transfer the deceased’s property to the appropriate beneficiaries, such as spouses, descendants, charitable organizations, debt holders, and even beloved pets.

Do you need a probate lawyer?

There are many instances in which the process of probate can be avoided entirely. When someone has established a living trust and placed most or all of their property within that trust, the deceased’s appointed trustee can manage the process of distributing the property without going through the process of probate. This is typically a desirable situation, as probate can be a costly process, and is paid for using the deceased’s legal assets, as well as through the auction of physical property.

Probate is also unnecessary when the deceased’s property has a total value of less than $150,000 (not including 401Ks, IRAs, life insurance policies, etc.), or when the sum value of all property not placed in a trust is less than $150,000. In this case, a relative can file an “Affidavit to Transfer Personal Property,” in order to transfer the assets under their own name.

However, many estates do go through the probate process. If you are a potential beneficiary of someone who has passed away, and their property is going through probate, then you may want to consult with an experienced probate attorney, such as Grant Toeppen at Toeppen & Grevious.

What does a probate lawyer do?

Probate lawyers generally operate in one of two capacities:

  • Transactional probate lawyers: When there is no controversy as to the validity of a will, or who the appropriate beneficiaries are, a transactional lawyer helps move the probate process along by handling the various legal duties and paperwork that are necessary to satisfy the requirements of the court. Transactional lawyers can also help in situations where someone has died without a will, by appointing an executor and assisting with the subsequent difficult probate process.
  • Probate litigation lawyers: Litigation lawyers are the attorneys who step in when something goes wrong. If there is an argument between family members, someone contests the will, an executor fails to fulfill their duties, or an alleged debt holder comes forward to collect a significant amount of property, then all sides involved should have a probate litigation lawyer on hand to protect their interests.
  • Many probate lawyers, such as Grant Toeppen, are trained to operate as both transactional probate and probate litigation lawyers.

So whether you are involved in a probate process that is relatively smooth and straightforward, or are in a situation where you or someone else is contesting a will, a probate lawyer can prove invaluable in helping to navigate the complex probate process.

The most common issues that require the services of a probate litigation or transactional lawyer include:

  • Managing an uncontested probate process
  • Contesting a will (or responding to someone who is contesting a will)
  • Trust contests
  • Disagreements between beneficiaries
  • Proving or contesting the validity of a will
  • Enforcing or supervising the execution of a will
  • Tracking down trust, estate, and financial records
  • Appointing or removing an executor
  • Extracting compensation from an executor who commits a breach of trust and misuses funds from the estate (this process is known as “surcharging an executor”)
  • Recovering assets
  • Settling concerns about financial elder abuse or coercion