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Is an Attorney Required During the Probate Process?



The probate process is the formal legal process during which a decedent's financial affairs are settled pursuant to the decedent's will or in the absence of a will. The process entails:

  • validation of the decedent's will
  • collection of estate assets
  • payment of estate debts and taxes
  • settlement of disputes or claims over estate assets
  • determination of the distribution of remaining assets
  • transference of estate assets to heirs as designated in the will or pursuant to state laws

Estate assets encompass property the decedent owned at the time of his or her death that is of value, including real property, personal property, and money.

Once the decedent dies, the probate court appoints a personal representative for the estate. The appointed representative is charged with administration of the decedent's estate. In instances of a will, the will most likely designated an executor. Unless the party designated in the will as the decedent's executor is not willing or cannot act as the personal representative, the probate court usually adheres to the decedent's preferences and approves that party as the personal representative.

In intestate situations when there is no will, the probate court has to designate a personal representative to serve. The court designates the decedent's spouse, a child of the decedent who is no longer a minor, or other immediate or close family member. If there is no family member able to serve as personal representative of the estate, the probate court may appoint a bank, trust company, or attorney to serve.

Role of a Probate Attorney

Counsel's role in the probate process is primarily to act as the personal representative's adviser during estate administration. The probate process requires a significant amount of paperwork to be filed, most of which is fairly complicated and must be filed by rigid deadlines. The consequences are serious for missing filing deadlines or filing incorrect or incomplete paperwork. It is the function of the probate attorney to make the personal representative aware of her duties and responsibilities and to ensure that the appropriate paperwork and forms are accurately completed and filed in a timely fashion. For example, a probate attorney may advise the personal representative if claims are filed against the estate, or assist the personal representative in his or her duty to keep an inventory of estate property, or be available to provide counsel to the personal representative at any formal hearing during estate administration.

Prospective probate clients may choose to seek experienced candidates for assisting in the probate process and estate administration matters. The amount of time a probate attorney actually spends in probate court is an important factor to consider. Probate counsel will likely be able to assist a client in maximizing returns and minimizing the time required and expenses of the probate process.