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  • Writer's pictureKyle Persaud

Times a Probate Lawyer is Needed

Updated: Mar 4, 2022

Many people wonder: Do I need a probate lawyer? When transferring a deceased person’s property to their heirs, it is important to work with a probate attorney to ensure proper transfer of those assets. There are several key instances when you should enlist the help of a probate lawyer, which I discuss below.

What is the Difference Between Probate and Estate Planning?

Probate is a court action where a judge orders the transfer of a deceased person’s property to the deceased person’s heirs. Estate planning is the process where a living person determines what will happen to his assets after he dies. In this post, I will explain when you need a probate lawyer; and in next week’s post, I will explain when you need an estate planning lawyer.

In a probate case, the deceased person is called the “decedent,” and his property is called his “estate.” During probate, the court will also supervise other aspects of the management of the decedent’s estate, such as the paying of creditors. In a previous blog post, I’ve written about what happens in a probate case.

Probate Assets vs. Nonprobate Assets

There is a difference between probate assets and nonprobate assets. If assets are probate assets, only a court can transfer the assets. The assets cannot be transferred any other way. So, if a decedent owned probate assets, you will need to file a probate action in order to transfer the assets. Nonprobate assets may be transferred without court action. Because probate can be costly, many people plan their estate so that all of their assets are nonprobate assets.

If a decedent owned probate assets, you will need a probate lawyer to help you file a probate action in court, so that you can transfer the assets. If a decedent passed away, and you don’t know whether his assets are classified as probate or nonprobate, you should hire a probate lawyer to identify all of the assets, and see if any are probate assets.

Work with a Probate Attorney to Transfer Assets

Even if all of a decedent’s estate consists of nonprobate assets, there still will likely be some legal work required to transfer the assets. So, even for nonprobate assets, you should consult a probate lawyer to effect the transfer. Any good probate lawyer will also know what to do with nonprobate assets, as well. You should have good legal representation in any transfer of assets, because if you make a mistake in transferring the assets, the mistake could be costly.

Keep in mind, also, that a decedent may tell you that all his assets are nonprobate assets, but they really aren’t. There are many unscrupulous estate planners who have falsely told their clients that their estate planning devices will prevent probate. But, the estate planners lied, the clients’ assets are still probate assets, and so a probate action is necessary to transfer the assets. Also, many estate planners actually do plan estates so that all of the assets are nonprobate assets, but the estate planners have done a poor job, so it still costs a lot to transfer the estate.

You Will Need a Probate Lawyer to Contest a Court Action

Another time you will need a probate lawyer is if someone else has filed a probate action in court, and you want to contest it. Perhaps you want to contest the will and argue that the will is invalid. Or, perhaps you believe that the executor (the person the court appoints to manage the estate) is not managing the estate properly. Probate contests are complicated, and often require a trial. So, you will need a probate lawyer for any probate contest.

Contact a Probate Lawyer

The Persaud Law Office has handled many probate matters. If you need a probate lawyer, we can help you. Contact us today.



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