What Do Probate Attorneys Do? Probate attorneys deal with the legal process during which the will is validated; the assets of the deceased are inventoried; and all debts, creditor claims (including applicable lawsuits) and taxes are paid. Then, once it is determined who is entitled by the probate proceedings, the remaining assets that were left in the Will are distributed to the named beneficiaries and heirs. Probate attorneys and probate lawyers must understand that the probate process is generally overseen by an executor, if there is a will, or by a court, and a court appointed personal representative, if there is no will. Probate can take anywhere from four months to a number of years to be completed, depending on state laws and varying circumstances.
A will is probated in the county and state in which the testator (person who wrote the will) died. If the testator owned any property in another state, another probate proceeding will be started in that state and county. Assets that do not pass directly to a surviving spouse or other heir through a community (joint ownership or joint tenancy) property agreement, right of survivorship, a payable on death (POD) bank account, an "in trust for" account with named beneficiary, other trusts with named beneficiaries, life insurance, retirement accounts [e.g., IRAs, Keoghs, and 401(k)], or annuities are subject to formal probate proceedings. If the decedent dies without a will (intestate), and no beneficiaries are named, the courts will determine the hierarchy of heirs.
What Is Probate? Probate is a process that is designed to enable the proper transfer of the decedent’s estate to the rightful beneficiaries. This process is also used to collect any taxes due on the transfer of the property. Outstanding debts can also be settled through probate, and usually a date is set by which time creditors must file any claims that they have. The probate process takes at least seven months, and the deadline for claims from creditors is normally six months from notification of the probate. The balance of the estate or property following settlement of these debts and taxes is then distributed to the beneficiaries. The nature of probate means that if there is no estate or property to be distributed then there is no need to go through probate.
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