If someone close to you has passed away and you need to wrap up his or her affairs, you may not know where to begin. You may be asking yourself several questions. Do I need to probate the will? What does a probate court do? Do I need an attorney? Below are answers to some of these common questions.
What is probate?
Probate is a legal proceeding where a court authorizes the administration of an individual's estate. Probate proceedings can determine if a will is valid. The probate court can also establish an administration when someone dies without a will and/or determine the deceased's legal heirs.
When is probate necessary?
Probate is often necessary to transfer property titles, but some types of assets can pass outside of the probate process. Examples include retirement accounts and life insurance proceeds where the decedent designated beneficiaries. Any property included in a trust will pass based on the terms of the trust and does not require a probate proceeding. Finally, property the decedent held with others as joint tenants with right of survivorship passes to the survivor.
Do I need an attorney to probate a will?
In most cases, you will need the assistance of an attorney to probate a will. In the State of Texas, only an attorney can represent the interests of others in judicial proceedings. Individuals can represent themselves in some legal matters (pro se). In most probate proceedings, however, an individual is not only representing himself or herself, but is also representing others such as beneficiaries and creditors of the deceased.
For example, in most cases the executor of a will would need the assistance of an attorney in probate proceedings because the executor is representing the interests of third parties like beneficiaries.
What if there is no will?
If the decedent died without a will (intestate), a probate proceeding is needed to authorize the administration of the estate. The division of assets will depend on the specific circumstances, so it is wise to contact an attorney for guidance.
Aldrich Law specializes in probate matters including probate litigation. If you are facing a will contest or simply need help navigating the probate process, do not hesitate to contact our firm. We can advise you of your options and protect your interests.