Probate: Avoiding Problems, Liability & Frustration
Probating an estate is the process in which a will is deemed accurate and valid. It is the step where a court looks at the will and grants an order that it is the last, final and true will of a person who has passed away. The probate process allows the deceased’s executor to be granted access and control of all assets, and distribute possessions amongst those listed as heirs. While it may sound straightforward enough (and perhaps a task that can be completed by oneself) the probate process is far from simple, short and sweet- and carries a
weight of responsibility. Done improperly, distributing an estate can create personal liability for the person who is managing the estate.
Why Hire A Lawyer For Probating An Estate?
The executor, now referred to as a personal representative, named in the will may be required to take on additional duties and responsibilities, such as tying up loose ends with debts incurred, distributing the estate and managing beneficiaries. Understanding and probating a will without legal assistance can be a confusing and timely process, with plenty of room for error. The last thing you need after losing a loved one is to receive the burden of extra stress surrounding legal issues. Your focus should be on dealing with the emotions and helping family members with their grieving when someone close to you has passed.
Having an estate lawyer probate an estate for you can eliminate unnecessary errors and guesswork and reduce the overall time of the process involved. Remember, you, as the executor, do not pay the lawyer for probating the estate. The cost of probate is paid for by the estate. Here are 10 reasons why a lawyer should probate an estate.
1. Avoid Family Conflict When Probating Estates
One of the most common situations to arise when it comes to probating an estate without legal assistance is family conflict. It’s natural for those who were associated with the deceased to want to be included with the probate process, but the interference of anyone other than the executor and a lawyer can result in tension, anger, hurt, confusion and resentment.
Having a lawyer carry out the probate process is the best way to eliminate the potential for frustrating or hurtful situations, and gain clarity in areas of the will that may otherwise be difficult to understand. It also decreases the risk of a beneficiary, or someone who thinks they are or should be a beneficiary from thinking that you are not dealing with the estate properly.
2. Gain Access To The Estate Quicker
Probating an estate can take more than a year. The quickest one can expect an estate to be probated is three to four months. The executor of the will does not gain instant access to property, estate beneficiary life insurance policies, investments or bank accounts without a probate. Hiring a lawyer to probate an estate can help speed up the process.
3. Avoid Claims Against The Estate
Upon the death of a loved one, there may be defendants who wish to make claims against the estate. This situation arises commonly when a spouse or loved one was not mentioned in the estate who feels they should be. These claims also arise when a beneficiary believes that the estate is not being distributed properly. When a lawyer is involved in distributing an estate, there is not the appearance of personal gain than a family member may have. A claim can also occur if the deceased has outstanding debts.
4. Avoid Initial Rejection Of Estate
In order for an estate to be probated, the courts require specific documents to be filed. This information must be set out in very specific forms in a very specific manner. Without these documents in place, the initial probate of the estate may be rejected. Having a lawyer assist you in the probation of the estate will ensure the timely and correct submission of all documents required by law, while preventing a tedious and time consuming task from needing to be done twice (or even three or four times).
5. Get Your Questions Answered
Are you unsure of who you must notify of the deceased’s passing? Confused at which assets require probate and which do not? Are there outstanding bills that must be paid from the deceased’s estate, or other unexpected complications that are keeping you up at night?
Not only will you receive answers to these crucial questions, but sound advice for your next steps when you hire a lawyer to probate an estate. If an estate is not distributed properly, then the executor can be held personally liable.
6. Become Aware Of All Debts And Expenses
Although finances aren’t the easiest situation to handle on behalf of another person, it’s a responsibility that simply must be taken care of.
The time spent dealing with debts, or other expenses such as accountants and ongoing expenses, will depend entirely on the deceased’s financial situation. Income taxes, funeral costs, outstanding bills and personal loans are a few examples of other common debts that require attention upon the passing of a loved one. Most often the costs can be taken from the estate, but each situation is unique and requires the advice of a lawyer to ensure appropriate measures are taken.
7. Resolve Debts And Expenses Correctly
Without a lawyer on your side to help resolve all debts or expenses, it’s possible that you may end up overpaying, underpaying or overlooking an important financial detail that requires attention.
Furthermore, creditors are required to be notified of the passing of a relative, which usually involves presenting a death certificate and/or other legal documents. Since debts and expenses can be a widely confusing and grey area, it’s best to hire a lawyer to probate an estate for you from the beginning, so you have a clear idea of the financial situation at hand.
8. Avoid Family Probate Lawsuits
Unfortunately, if there’s tension or disagreement amongst family members, it can result in a probate lawsuit. An estate lawsuit is not only costly and time consuming, but emotionally taxing. Having a lawyer probate an estate may prevent an ugly court battle between family members down the road. A search of recorded probate cases (only those with a written decision: there are many more) show over 8,000 cases involving probate in Alberta.
9. Support For The Executor
The executor of an estate is left with several responsibilities, and the tasks at hand will vary depending on the responsibilities of the deceased. Not only is the executor responsible for reading the will, contacting beneficiaries and potentially mediating between family members, but also dealing with other time consuming tasks and tying up loose ends relevant to the deceased.
For this reason, it’s invaluable to have the support of a lawyer to offer you direction and guidance in seeing these responsibilities through.
10. Avoid Unnecessary Delays
Without a validated will, it’s possible for third parties (such as banks) to deny access to the executor for lengthy periods of time. Hiring a lawyer to probate an estate can avoid the headache that ensues with communication between financial institutions, government agencies or similar authorities.
When considering to hire a lawyer to probate an estate, it’s true that you have a choice to also carry out the task yourself. But as you can see, with such a great deal of responsibility at hand, it may be worth considering simply to avoid unnecessary stress and wasted time.
Make Probating An Estate Easier
Probating an estate can be difficult. You are not alone. The estate is allowed to hire a lawyer to probate the estate. The estate pays for the cost, not you as the executor. If you have questions about speaking with a lawyer in Alberta to probate an estate, contact Kahane Law, a Calgary law firm with a focus on client service, to speak with a lawyer today. You can also call us at 403-225-8810.