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Where there's a will, there's a lawyer: probate law demystified

Having just lost a loved one, probably the last thing you are interested in is settling the estate of the deceased through a lawyer that specializes in probate law. As soon as you've laid your loved one to rest, however, it is time for the inevitable trips to your lawyer's office and eventually to the courtroom where a probate judge will preside over the final disposition of your loved one's estate.

In probate law, there is a lot of legal language that can be very confusing. Unlike contract disputes, family law and criminal law, probate has its own terminology that, though essential for you to understand, can be mind-boggling in its complexity. In reality, once you get through the legal language of probate law, it really is not that difficult. If your loved one left a will, your probate lawyer will competently walk you through all the legal steps necessary for the estate to be settled as quickly and easily as possible.

A Last Will and Testament:
  • Declares the final wishes of the deceased regarding the distribution of his/her personal and real (as in real estate) property after death. The term "testament" means "promise." Putting it all together, a last will and testament comprises the final desire and promise to your loved one's survivors.
  • Is a legally binding document unless it can be proven in a probate court that the "testator" (the person making the will) was either incompetent to direct his/her final affairs or was coerced into making certain provisions for others in the will. Probate law assumes that the testator was competent and was not coerced at the time of the writing of the will unless directly challenged by another individual.
  • Is either formally drawn up by an attorney, or hand-written. Most people hire an attorney to draft their wills so that all legal aspects will be addressed. However, American probate law recognizes a hand-written will as long as it is entirely written, dated and signed by the testator. This is called a "holographic" will. Unless the holographic will is challenged by a relative or potential beneficiary of the deceased, it is as legally binding as a will prepared by an attorney.
  • Is a document that declares that the testator is of sound mind and has not been coerced regarding the contents of the will, contains the names of the testator's blood relatives to whom certain bequests are made and the names of other non-family members or organizations who will receive benefits from the will, describes the testator's real and personal property, and specifies how the testator wishes to disperse his/her estate. 
  • Names the executor of the decedent's will, and specifies whether this executor shall serve with or without bond. An executor is someone whom the decedent names to administer her/his will – usually a trusted relative such as a spouse or adult child or an institution, such as a bank where the decedent kept funds. Unless the will specifies otherwise, an executor must post a bond (for which a fee is charged by the issuing company) with the court assuring faithful performance of the duties of that office on behalf of the beneficiaries and creditors of the estate. Alternatively, the decedent may direct that the executor serves without bond.
  • Directs that the decedent's estate pay all final expenses, taxes, court costs, executor's fees, and attorney fees. This is accomplished by the decedent's executor. Inheritance taxes, however, are paid by the beneficiaries of the will and not by the estate of the decedent. 
  • Gives specific directions as to the dispersal of the estate if the testator's spouse and/or children pre-decease him/her.
Do I need a probate attorney?

In most cases, yes. Probate law tends to be complicated, especially if the will is either holographic or contested. It takes a seasoned probate lawyer to guide you through the legal complexities of settling your loved one's estate even when the will is uncontested. In an ideal world, wills would be properly written and followed, but this is an unrealistic wish in some cases.

Suppose, for example, that your loved one was not in a healthy state of mind when writing his/her will and left the entire estate, under duress, to a charity that has a shady reputation. All of your loved one's blood relatives have been completely eliminated as inheritors. You would need an attorney to sort this out and represent family members who believe that the will was written under duress.

If your loved one's estate totals more than $25,000, the probate court judge will advise you that it would be in your best interest to hire a probate attorney. In most states, an estate under $25,000 is subject to "summary administration," which is a sped-up probate procedure for small estates that need not be subjected to the full probate procedure. You will most likely need a probate lawyer to guide you through this procedure, but the court costs and attorney fees will be much less than with a more sizeable estate.

The last word

The Uniform Probate Code attempts to standardize probate procedures in all states, instead of having each state administer wills differently. Since the Code provides specific probate procedures that can be used in any jurisdiction, probate law has become much simpler. The best thing you can do for yourself and your loved one's family and friends is to return to the attorney who originally drafted the will. Contested wills are an extremely complex and adversarial procedure that is very unpleasant for all family members and friends of the deceased. If your loved one's will is challenged, it is essential for you to retain the services of a probate lawyer who specializes in contested wills. In settling your loved one's estate, it is essential that this legal procedure be accurately carried out, providing a much-needed sense of closure for all concerned.

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Further sources of information

You may find our other articles in the Death, the law and you section helpful too.

Visit our Amazon store to find books on wills and probate.

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