You hear legal terms on law shows. You may even hear them in passing conversation but never know for sure what they mean. One of these terms is the word "probate", which you may hear when a loved one passes or from a friend who recently did some estate planning.
What Does Probate Mean?
Probate is the court-administered procedure for settling an estate as provided in your Will or under State law. It involves official court recognition of the Will and appointment of the personal representative. Probate is just one part of the broader legal process called estate administration. Estate administration involves gathering property, paying expenses, filing tax returns, and distributing property after a person dies. When court involvement is needed or required by law to accomplish any of these parts of estate administration, it is called a probate.
Is a Probate Always Needed?
Because probate involves a court, it involves court costs, more time, reporting requirements, and additional legal expenses. While in certain situations, a probate is preferred, it is not always required. During your life, you can plan so that your estate can avoid probate after your death. An estate planning attorney can help you use beneficiary designations, certain types of joint ownership, a living trust, or other estate planning tools to avoid the need for probate.
The laws in each state vary in regards to probate requirements. Minnesota law requires a probate based on the amount and type of property in your estate when you die. A probate is also required when there is not enough property in the estate to pay all estate expenses or if someone contests how the property is being distributed. In Minnesota, there are different levels of court involvement ranging from an informal, unsupervised probate to a formal, supervised probate. The more formal the probate proceeding, the more costly it is to the estate.
How an Attorney Can Assist with Probate
After someone dies, an attorney can help with estate administration and with probate in numerous ways. For instance, a lawyer can help family determine whether a probate is necessary and, if so, what kind. The attorney can help file the Will with the court and appoint a personal representative of the estate. A lawyer can explain the process and legal terminology. An attorney can assist with the necessary paperwork and help the personal representative avoid mistakes. The lawyer will be there to assist the personal representative if any issues arise.
Why Hire an Attorney for Probate
First and foremost, any mistake during probate may harm the outcome of the process and ultimately reduce the amount of property that goes to heirs or beneficiaries. If heirs fight over the estate, the attorney can help resolve the issues, possibly before a probate is needed. This reduces the stress the personal representative and the family feels, especially during a time of already high emotions. An attorney may help ensure that payment is made only to the creditors that the deceased owed money to and not to the those who are preying on the family during this difficult time. An attorney can advise on the proper tax returns and can assist in filing those returns. In short, an attorney can help the personal representative navigate the complex legal process of probate and estate administration.