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What is a Probate Attorney?

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  • Written By: Alexis W.
  • Edited By: Heather Bailey
  • Last Modified Date: 08 May 2018
  • Copyright Protected:
    2003-2018
    Conjecture Corporation
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A probate attorney helps facilitate the process of executing a will. When a person dies with a will, his assets are distributed according to his wishes described in the will. The court system helps to ensure those wishes are carried out by overseeing the process of distribution of assets.

Probate laws differ by jurisdiction and in different countries. The laws, however, are generally designed to ensure that the will was legal and valid. The laws are also designed to ensure not only fair distribution of assets, but also to calculate inheritance tax owed, if any, and to formalize the transfer of property.

Generally, when a person dies with a will, that will names the executor of the estate. The executor of the estate may be an attorney or a member of the family, a friend or other trusted adviser. The executor must notify the court of the will and there must usually be a formal reading of the will.

Provided the will is not contested and was valid according to the laws of the jurisdiction, the court will allow the probate process to continue. During this time, the executor of the estate will divide assets according to the terms of the will. Creditors will also have the opportunity to come forward during the probate process to make any claims on any assets of the estate, and those who have a reason to contest the will or the validity of it may also come froward.

A probate attorney can assist when the probate process becomes complex as a result of a large estate. A probate attorney can also be a useful asset if a will is contested or if there is a dispute in regards to whether a creditor is entitled to a piece of the estate. The probate attorney may represent the executor of the state or he may represent someone challenging a will or someone defending a challenge to a will.

Depending on who he represents, the specific duties of the probate attorney will be different. If, for example, the attorney represents someone who believes a will was created fraudulently or through coercion, it will be the job of the probate lawyer to help prove this through witness and other testimony. On the other hand, if the probate attorney represents an executor or heir who believes the will is valid, he may represent this party against anyone contesting the will.

Probate courts are state courts, so a probate attorney generally works within a given state, or several states, in which he is licensed to practice law. He may appear in court frequently to assist a party through the probate process. He must be familiar with the given laws of the jurisdiction on the validity of wills and on all other aspects of the probate process.

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