When a loved one passes away, one of the first practical steps that must be taken is to locate the decedent’s Last Will and Testament. If one was executed by the decedent prior to death, the person appointed within that Will as the Executor of the estate is charged with probating the estate. If you recently learned that you are the Executor of the estate of a recently deceased loved one, you may be wondering if you need an attorney to assist you with the probate process. To help you make that decision, the Harrison probate attorneys the Law Offices of Kobrick & Moccia discuss five reasons why you need an attorney to help you probate an estate.
What Is Probate?
Probate is the name given to the legal process that is usually required after a person’s death. One of the primary functions of probate is to provide judicial oversight which ensures that the assets owned by the decedent at the time of death are identified, located, and eventually transferred to the beneficiaries and/or heirs of the estate. Probate also serves as a way to protect creditors of the estate by requiring that they are notified of the decedent’s death and giving them the opportunity to file claims against the estate. Uncle Sam is also covered by requiring that any gift and estate taxes owed must be paid before the conclusion of the probate process. Finally, any challenges to the validity of the Last Will and Testament submitted for probate are litigated during the probate process as well.
How an Attorney Can Help
In the State of New York, an Executor is not required to be represented by an attorney. Moreover, if the estate is modest and the likelihood of litigation is minimal, you may not need an attorney to help you probate an estate. If, however, the estate is required to go through formal probate and/or there is a possibility of litigation during the probate process, it is in your best interest to retain the services of an experienced probate attorney. A probate attorney can help you in a number of ways during the probate process, including:
- Prepare and file legal paperwork. Probate begins with the filing of a petition to probate the estate. Throughout the probate process, there will be a variety of legal documents that must be prepared and filed with the court and/or served on participants in the probate process. Some, but not all, of these forms may be available online through the appropriate court’s website; however, the court itself warns participants that the staff cannot provide legal advice nor offer assistance in filling out the forms and encourages participants to consult with an attorney. The only way to ensure that documents are drafted properly is to work with an experienced attorney.
- Litigate challenges. Authenticating the Will submitted to probate is one of the purposes for the probate process. If the authenticity of the Will is challenged, you will need an experienced probate attorney by your side for the ensuing litigation.
- Ensure that state and federal taxes are paid. Every taxpayer is subject to federal, and sometimes state, gift and estate taxes. Calculating how much an estate owes in estate taxes can be a complicated endeavor; however, a mistake made in the amount of tax owed can be devastating to the estate, and therefore to the beneficiaries.
- Effectuate the transfer of assets. Once all claims have been resolved, any challenges to the Will litigated, and all taxes paid, the remaining assets must be legally transferred to the intended beneficiaries. A probate attorney can help you locate the beneficiaries and prepare the necessary documents to effectuate the transfers.
Contact Harrison Probate Attorneys
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns regarding how an attorney can help you during the probate of an estate, contact Harrison probate attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.