PROBATE ATTORNEY – WHAT DO THEY DO?

Probate is administered by the executor (if there is a will) or by the personal administrator (if no will).  Often, however, the average person does not have the experience or time to maneuver the probate process alone.  There may also be personal or professional reasons why the individual may need assistance with probate.

Probate only becomes necessary when someone has passed away.  Since the executor is usually a family member, this means they’re expected to engage in certain probate steps while still grieving for the loss of their loved one.  For instance: the decedent’s will is supposed to be lodged with the local probate court within 30 days of death.  This is something the average person doesn’t know, and certainly does not want to deal with so soon after losing a family member.  Another issue is access to funds immediately after the decedent’s death; the average person may not know how to get access, nor what assets they may engage without breaching their duties as executor.  An experienced probate attorney can complete or at least facilitate these initial activities.

Probate is a very rigid process, which requires certain steps to be performed in a precise order, by designated persons, by use of certain forms and exact language, within particular time frames, and subject to specific notices (in terms of both timing and content) to specific people.  Failure to abide by the explicit probate rules can extend the probate process by months, which in turn can aggravate beneficiaries, and stress family relationships.

Additionally, the executor is usually also a beneficiary of the probate estate.  Even the mere appearance of impropriety on the part of the executor can cause suspicion and breed enmity, no matter how well intentioned or competent the executor acts.  This can be avoided by having a neutral third party handle the estate, as well as field delicate questions and concerns of family members.

Lastly, the executor/administrator is considered a fiduciary, meaning they have the highest duty of responsibility to the beneficiaries of the estate.  This entails, among other things, marshalling and securing the probate assets, making prudent investment of probate assets while administration is pending, and keeping estate assets separate from their own.  These duties can be inadvertently breached by well-meaning laymen, or may be too onerous for an individual who has their own full-time job and family to manage.

Having a professional assist with you with probate process can save you time, can ease family relations, and may even save money by helping to avoid litigation within the probate, by providing an impartial third party to the administration.