The process of probate can be a very stressful and complex time. If there are issues with a probate and you want to know what your rights are, you should consult with an experienced probate attorney near you. The probate attorneys at O’Flaherty Law can offer you sound advice and rigorous representation in the probate court. Probate can be a long and sometimes difficult legal process and you want to the right attorney for your legal needs. Not having an experienced probate attorney at you side can result in the estate over spending or the probate process stalling so it is in your best interests to consult with counsel as soon as possible. If you choose to not retain counsel, it is likely you will make a costly mistake or do something that will cost the estate money, thus making gifts smaller.
You owe it to yourself and your family to ensure that you have the right representation when dealing with probate so that you can come through the process knowing everything was properly handled. The last wishes of your family member are respected.
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The probate process can be complex even when there are no issues between remaining family members or friends. Depending on the size of the estate and its complexity, probate is a minefield of potential issues to navigate. An experienced probate attorney can mediate disputes between heirs, challenge a will or fight a challenge to a will in court. The guidance of a good probate attorney can help speed up the probate process, allowing you to access assets more quickly. If the estate has alleged creditors, a good probate attorney can fend off collections on the estate, retaining more money or property for the heirs. The probate attorneys at O’Flaherty Law are highly experienced in probate law and litigation and will be able to steer you through any pitfalls or delays while you are dealing with probate.
You can expect open-door communication and support from the entire team at O’Flaherty Law. We will be at your side every step of the way.
The purpose of a consultation is to determine whether our firm is a good first for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. We take your legal matters very seriously, which is why with each consultation, we strive to ensure you feel confident about the future of your case.
You can count on your O’Flaherty Law probate attorney to provide clear and accurate communication about your case and support during the probate process. During your initial consultation with an O’Flaherty Law probate attorney, you will discuss the problem and your goals. A frank discussion about your goals is critical to your case because your attorney will devise a strategy to best reach your goals. Once you and O’Flaherty Law have signed an agreement, your attorney will begin working to help you reach your legal goals. Sometimes that means going into court and litigating; sometimes, it can mean just reaching an agreement with the other side.
The team at O’Flaherty Law will also provide any follow-up necessary to ensure that you leave the probate process with all your questions and concerns addressed. That way, you can move on with your life feeling confident that all aspects of the case were handled properly and that the estate was distributed in the right way.
The simplest explanation of probate is that it is the validation of the will of a deceased individual. When a person passes away, a petition for probate is filed, and the process begins. The court will follow established procedures to ensure that the will was appropriately formed and that the terms of the decadents will be carried out properly, with all property going to its intended recipient.
Estate administration is when the will or the court appoints an administrator to manage the details of the estate. The administrator ensures all assets are accounted for, and debts and taxes are paid on behalf of the deceased.
People use “probate” as a blanket term for anything done with a person’s estate after they pass away. Still, many aspects of finalizing and distributing an estate may not always involve the probate court, such as managing a trust or finalizing an insurance policy.
The will can name an executor, but it is the probate court that approves that executor. If there is no will, but the estate is over a certain size, or if the will does not name an executor, the court will appoint an administrator. The difference between the two titles is just how the person is given the job. The duties of an executor and an administrator are the same. Both titles have a fiduciary duty to account for assets properly, pay taxes and debts of the estate, and help ensure property goes to the proper recipient. In certain circumstances, an executor named in a will may have additional powers and duties laid out in the will, while an administrator only has duties imposed by law.
When the party who pays child support experiences a change in circumstances child support will need to be recalculated and a modification ordered. The reasons for modification are typically that the party paying the support has received an increase in income either from their employment or sometimes after receiving an inheritance. On the other side of the coin, if the party paying child support is fired or experiences a decrease in income, they will also need to request a child support modification from the court or be in danger of accumulating child support arrears, which can be very difficult to recover from financially and comes with many potential penalties. Child support payments must be made in the same amount until the modification order is entered.
Prior planning and careful handling of your assets can help you avoid probate, avoid the associated fees, and curb some of the taxes the estate and your beneficiaries must pay. Consult with an experienced estate attorney to arrange things, so nothing or very little needs to be probated. An experienced estate planning attorney can design and implement a plan that will allow you to either have very small and simple probate or avoid probate entirely. Common tools or legal instruments that can help someone avoid probate would be trusts, insurance policies, payable on death (POD) bank accounts, and holding property jointly, preferably with right of survivorship included in the deed.
You probably won’t “go to probate court” unless there is a dispute that only the court can resolve, like a challenge to the validity of the will or perhaps fighting a creditor of the estate. In such cases, witness testimony, cross-examination, and exhibits will have to be offered on to the record. Most of the time, any hearing will not require your presence, and your probate attorney can simply appear for you and then report back to you after the hearing. In fact, that is a big reason many people benefit from hiring an experienced probate attorney. It provides them with a trusted representative to handle the nuts and bolts of probate court while they go on with their everyday lives.
Every state has its own set of probate rules. Generally speaking, probate does not typically last over one year. However, if the will is contested or if there are other legal issues to be dealt with, for example, tax issues or a large and complicated estate, it can go on for two years or longer. Regular communication with your probate attorney will shed light on where the process is and how much more needs to be done for the probate, and you can get an estimate of timeframes, although those are never guaranteed. While it can be very difficult to be patient, it helps to understand that the court simply wants to make sure everything is handled the first time for every case properly, and that takes time.
Your team at O’Flaherty Law will always be available to you to answer your questions and address your concerns. While we will be at your side every step of the way, we find that there are a few questions everyone asks about the probate process, so we included those frequently asked questions below. We want you to not only be prepared for what the process of probate entails, but we want you to finish the process feeling good about the outcome.
Probate is the process of determining whether the will is valid and that the assets contained within the estate of the deceased can be disbursed in the manner that the deceased party wished. Not all assets have to go through probate, but if there is a will, the assets listed in that document typically go through the probate process.
When a property is “in probate,” the court and the executor or administrator still ensure everything is accounted for and that all debts and taxes are paid before distributing any remaining property. After probate closes, the property can be distributed.
No probate isn’t “bad,” but it can be difficult and time-consuming. Probate costs money, and that means that the executor and any professionals who work on completing the probate process have to charge fees for their services. Additionally, there are state and federal taxes and fees associated with probate that cost the estate money and can diminish the total value of the estate. However, that is not usually a deterrent to most parties.
Generally speaking, people use a combination of trusts, payable on death accounts, and insurance policies to avoid probate. Furthermore, if the deceased's estate is under a certain dollar value--depending on your jurisdiction--you can do a simplified version of the probate process that usually takes less time. It's always a good idea to consult with a probate attorney before taking any action to know your options and plan accordingly.
No. If the funds are not held in a trust or some type of transfer on death account, they cannot be released until probate is complete. It is important to understand that if you are waiting for something left to you in a will, so is everyone else who was named as a recipient of a gift by that will, it is nothing personal, and it just takes time.
Probate is required when an individual passes and leaves an estate over a certain size. Many states have a cutoff point where if the value of the estate is under a specific dollar amount, it can be administered informally with minimal intervention by the probate court. If there is no will and assets are passed through other means, then the probate court does not have to have any proceedings. For example, if you have no assets other than a life insurance policy and nothing to pass via will, there will not be probate.
You can sometimes avoid probate court if the estate is under a certain value. If you hold your assets in different instruments, such as trusts or accounts that transfer on death, then probate will most likely be unnecessary.
This is an estate planning technique used to avoid probate for some assets. If the decedent has a living trust and fails to place certain assets in that trust, the “pour over” will directs that the assets be placed in the trust. After the will is validated, the “pour over” will becomes effective, and the identified assets are placed in the trust.
Probate court is not an area of law a lot of people have experience in. It has a different set of rules and requirements than, for example, small claims or criminal court. If you are asking if you need a probate attorney, you should at least talk to one. Then once you have a better idea of what your situation entails, you can decide, but it is typically better to have an attorney at your side than to try and go it alone. It's easy to miss important details and deadlines when unfamiliar with the process.