Initially, the probate attorney files the probate petition to appoint someone as the personal representative.
He also handles all other required proceedings in court. For example, he may file or defend a will contest to decide who becomes executor. He deals with creditors’ claims and also gives notice to creditors, and heirs, beneficiaries, and other people who are entitled to receive notice of the probate.
After all the various administrative tasks have been completed, he prepares and files a petition for final distribution. This petition reports to the court what the personal representative has done during his term of administration. The final petition accounts to the heirs for the assets and money that have come into the personal representative’s hands.
Ultimately, the attorney asks the court for an order authorizing and directing the personal representative to distribute the property according to the terms of the will.
The probate attorney may further deal with the attorney handling an ancillary probate if any property is owned in another state. Non-probate issues can also arise which require legal attention, like getting, receiving, or obtaining payment of life insurance and dealing with things like payment of annuities.
Do People Always Hire Attorneys? Do They Ever Hire A Paralegal to Handle a Probate?
A person must be a licensed attorney to appear in court. Therefore, a paralegal is not able to handle a probate or represent a person in a probate in court.
A paralegal can help fill out forms. In this case, however, the personal representative would need to make all court appearances by himself, because the paralegal is not able to appear in court without a lawyer’s license.
Typically, attorneys are essential for the probate process, even though they are not legally required. To put it simply, laypeople don’t know how to handle a probate. It can become very time-consuming. Non-lawyers can so easily do something wrong, or fail to give proper notice of a hearing on a petition, requiring that the matter be dropped or continued, and have to go back into court hoping to do it right the second time.
If they don’t do it right the second time, the court may dismiss the petition. The person would need to start all over again.
What Are the Potential Problems if the Personal Representative Tries to Conduct a Probate Without an Attorney?
One of the purposes of an attorney is to advise the personal representative regarding his or her legal duties and make sure those duties are carried out. A personal representative is considered a fiduciary to the heirs and beneficiaries of the estate. This means that he has a duty of care to those people and is required to set aside his or her personal interests in favor of the beneficiaries.
One primary task that must be done is preparing and filing a full and final account of what that executor has done during his term as personal representative. This includes information about bank accounts and deposits, amounts received, bills paid, dispositions of stocks and bonds including gains and losses on sales, sales of securities and receipts of dividends or losses on the sales.
Accountings can become quite complicated. If nothing else, most personal representatives eventually use an attorney to perform the accounting function at least.
Often, in more complicated estates, an accounting firm that is familiar with court accounting requirements is hired to do the actual accounting. The attorney receives and reviews the accounting and drafts a petition for final distribution and accounting. This way, the heirs are informed regarding what went on in the estate, and how much each is entitled to.
How Are Estate Creditors Dealt With?
First, they are dealt with by collecting the decedent’s mail. Typically, the person appointed as executor goes to the post office and changes the address posted for mail that comes to the decedent. This way, the executor receives things like the bills and bank statements of the decedent.
Also, it is a requirement to publish a notice of the filing of a petition for letters, in a newspaper of general circulation. Typically, creditors regularly review the local newspapers for probate notices. They then have 120 days from the issuance of letters to file a creditor’s claim in the probate to receive payment.
Most of the time, the creditors are known or can be determined through the decedent’s mail. If the personal representative believes that the bill is a valid debt, and sufficient money exists in the estate, then the Probate Code authorizes the executor to pay such bills without submission of a creditor’s claim.
The personal representative reviews the filed creditor’s claims and then decides whether each creditor’s claim is valid or not. If he approves it, he places it in line for payment upon final distribution if it hasn’t already been paid. If he doesn’t approve it, then he rejects the claim. A notice of acceptance or rejection is then sent to the creditor.
If rejected, the creditor has a period of time to file a lawsuit to enforce the debt. If he fails to file within that time period, the claim is barred. California also has a law that bars any claim against a decedent that is filed more than one year following the decedent’s death.
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