Facing legal issues can be intimidating. At times, it can even feel impossible. This is especially true for families experiencing the death of a loved one. When a loved one passes, one of the first arrangements that needs to be made is the division/distribution of their assets. In many cases, the instructions for this process are laid out in a will. In other situations, there is no will, or the will is invalid, making the process for settling these sensitive affairs much more complicated.
Grief is a difficult emotion, and it has been known to turn even the closest of relatives against one another. So, when families go through it without help, they can end up creating rifts that take generations to repair. Luckily, you do not have to navigate the process of distributing assets alone. Estate and probate lawyers are trained professionals who can help you divide your loved one’s assets according to their wishes and keep your family relationships intact.
Estate attorneys, or estate planning attorneys, are lawyers who help individuals to get their affairs in order before they pass away. While this may sound morbid, it is a perfectly natural part of adult life to consider what happens after death, and any adult can seek the services of an estate lawyer—regardless of age (18+), health status, assets, or income.
Estate attorneys help individuals to write their wills. During this process, they help clients document their wishes for how their assets will be disbursed as well as the beneficiaries and organizations who will receive them. These attorneys talk the owner of the will through the entire process, ensuring that they understand the legalities of the document and what it should contain.
Another task of an estate attorney is aiding their clients in making a plan for if they ever become incapacitated or unable to make their own decisions. Often, this means drafting a living will. This document will include instructions for medical care (such as Do Not Resuscitate, Do Not Intubate, etc.) and name the individual who will receive power of attorney. This ensures that, in the event that the will holder cannot make their own decisions, the correct people will be able to do so in their place.
Probate attorneys are a bit different. Though they can help to advise clients about the terms of their will before their death, probate attorneys have more responsibility after the individual has passed away. These attorneys are sometimes called “executors of the estate,” and they carry out the process of proving the will. However, the specific tasks of a probate attorney will depend upon whether or not there is a will left behind.
In situations where a will has been left behind by the deceased, the probate attorney reviews the document. They are trying to ensure that the will is legal and legitimate and that the deceased was in their right mind when they signed it. This process is called, “probate,” and means to review or legitimize a will. After the will is found to be legitimate and binding, the assets can be distributed to the beneficiaries.
When the deceased does not leave a will, this process is more complicated and less personal. These situations are called “intestate” deaths, and the deceased’s property is distributed according to intestate law. This generally means that a surviving spouse gets all of the assets.
If there is no surviving spouse, the state has a set of guidelines that detail how the assets should be distributed. In these situations, a probate attorney is still the executor of the estate. The probate attorney ensures that all of the assets go to the correct beneficiaries—except, rather than following a will, they are following intestate laws.
This can be a lot of information to digest at once. To summarize, estate attorneys primarily handle a person’s assets before they die, whereas a probate attorney ensures that the person’s wishes are carried out after they die. The two are similar and sometimes have overlapping responsibilities, but that is the main distinction between them.
It is never too early to hire an estate attorney. After you turn 18, you can create a will in the event that you unexpectedly pass away. Having such a document can be a significant relief to your family, and can ensure that they receive what is rightfully theirs if you do pass. Though an estate attorney is not necessary to create a will, they are able to ensure that the document is drafted properly, and will stand up in court. It is highly advisable to hire an estate attorney to help you with this task.
In many cases, probate attorneys are not absolutely necessary. However, it is always best to hire one after the death of a loved one. As we mentioned, grief is a significant force; many people behave in ways that they otherwise wouldn’t while mourning, and it is not uncommon for an individual to contest a will. Having a probate attorney helps to mediate any disputes. It also relieves family members of the burden of having to oversee estate distribution while they are grieving. This is a massive undertaking, and one that is often mishandled by those who do not know what they are doing. Overall, it is in your family’s best interest to find a probate attorney.
Here at Sweeney Law, we specialize in estate and probate law. Though we have practiced other areas of law, we find that probate and estate law has the greatest positive impact for others. We understand what it is like to plan for your own death and to experience the death of a loved one, and we have dedicated ourselves to supporting and uplifting families during times of upheaval, through high quality probate and estate legal services. For more information about what we do, or to schedule a consultation, please reach out to us online today.