Let’s say you have a will; you have planned out the way your assets will be distributed upon your death. So, what does a probate lawyer do to fit into all this estate planning?
A probate attorney is a facilitator that assists in executing the estate. Essentially, they are the one who files the last will and testament of a deceased person.
Why is a Probate Attorney so important?
It’s true, you may write your own will and handle your own estate. See more here about the legal consequences of writing your own will. There are many reasons why you personally shouldn’t handle the execution of an estate.
A probate attorney is trained through extensive legal education on how to properly execute the estate of a deceased person. However, if the probate lawyer errors in the execution, they will be liable and may be sued for their mistake.
As a non-attorney, if you make an error, mistake, or fail to execute the estate even the slightest bit, one of the beneficiaries may challenge the will and you may be subject to a personal liability lawsuit. These types of lawsuits do occur frequently, and it’s even more important when they do occur to have an experienced lawyer on your side. This means that you can be sued for your mistake, and you will have to personally compensate for your errors.
So why can a will be challenged?
A probate attorney handles several tasks dealing with a will. However, sometimes a non-lawyer writes the will, and we have seen these wills challenged quite often. Some challenges include:
- Testamentary Capacity: the person who wants a will must have the capacity to create a will. This individual must be 18 years old and have the requisite mental capacity. The person must understand basic fundamental aspects such as who the beneficiaries are, what assets are being distributed, the value of the property, etc.
- Fraud, Forgery, Undue Influence: the person cannot be manipulated into signing a will.
- Improperly Executed Wills: for a will to be effective, certain guidelines must be adhered to. For instance, in Florida, a will must be signed in the prescience of two adult witnesses, who also sign the will.
There are other reasons why a will can be challenged. A knowledgeable attorney can ensure that your will is properly executed so it won't be challenged upon your death.
Should I hire a Probate Lawyer if the deceased party does not have a will?
If you or a family member dies without having a will, then you have died “intestate.” This means that your assets will be distributed according to the intestate laws of your state, regardless of how you or your family member wanted those assets to be distributed.
A probate lawyer may help in this situation properly administer the assets according to the intestate laws in your state. Although the probate lawyer will be able to help in this situation, they will be quite limited in their capacity as they must abide by the intestate law.