It is not uncommon for people to confuse the role of a probate attorney with that of an estate planning attorney. After all, both attorneys deal with estates and all that comes with them. The roles, however, come at different points. An estate planning attorney helps you plan for the future; a probate attorney helps look after that plan once you have passed away, and the probate process has begun. One attorney may handle both roles, but the roles themselves are different.
What does an estate planning attorney do?
An estate planning attorney helps individuals and couples plan for the inevitable: death. You should visit an estate planning attorney to have a will written, choose medical powers of attorney, name guardians for your children, name an executor of your estate, create trusts, and make changes to any of these directives.
What does a probate attorney do?
The duties of a probate attorney differ based on the situation left behind by the deceased. For example, if the deceased had a will, the probate attorney will likely be hired to advise the surviving family members or the executor regarding any legal issues that might arise. Other duties of a probate attorney include:
- Collecting and managing the proceeds of any life insurance policies
- Having the property of the decedent appraised
- Locating and securing all of the assets of the decedent
- Advising how the debts and bills of the decedent should be paid
- Preparing and filing any documents required by the probate court
- Managing the finances of the estate
- Determining if taxes are owed on the estate
Often, an attorney also serves as the executor of an estate. There are benefits to this, as the attorney is impartial, and already understands the wishes of the client.
Dying intestate in Tennessee
If a will was not present, a probate attorney can be hired to help the surviving family members divide your property. Dying without a will is referred to as intestate. The probate attorney must follow the intestacy laws of Tennessee, no matter the wishes, wants, or needs of the surviving family members.
When you die intestate, your property will be divided as follows:
- If your have a spouse who survived you and do not have children, your property will be inherited by your spouse.
- If you have surviving children but no surviving spouse, your children will inherit your probate estate equally.
- If you have surviving children and a surviving spouse, your spouse will inherit either a child’s equal share of the probate estate or one-third of the probate estate, whichever is greater. Your children will then inherit the balance of the probate estate equally.
What is the probate process?
Every estate goes through probate, even ones with a will. During the probate process:
- The will of the deceased is validated;
- An administrator, executive, or representative of the estate is appointed;
- All taxes and debts are paid;
- All heirs or beneficiaries of the estate are identified; and
- The assets are distributed to the appropriate heirs and beneficiaries.
The probate process begins when the representative for the estate of the decedent files a petition with the probate court. The process concludes when the probate court closes the estate. Probate can last anywhere from a couple of months to more than one year. During the process, the beneficiaries of the estate do not have access to the estate’s assets.
When do you need a probate attorney?
There are certain circumstances where a Chattanooga probate attorney can assist you.
- There are significant debts. The first of these is when an estate is not large enough to pay off all of the decedent’s debts. These debts can include funeral costs, medical bills, and final income taxes. You should never pay these debts until you speak with a probate attorney.
- There are significant tax considerations. The majority of estates are not required to pay federal estate taxes. However, if the estate left behind by your loved one is large enough it might have to pay federal estate taxes. A probate attorney can help you with the payment of federal estate taxes.
- Someone has contested the will. If there is a will contest, you absolutely need a probate litigation attorney on your side. Even if there is no will, family members may make a claim for assets. In this case, you will need an attorney to represent you before the State takes those assets.
- Why Your Estate Might Be Subject to Probate Litigation
- Pursuing a Claim Against an Estate with Probate Litigation
What do I need to provide the probate attorney?
When you decide to work with a Chattanooga probate attorney, you should provide him with the following:
- The will
- Any and all insurance policies the decedent held
- The deeds to all property the decedent owned
- The tax returns of the decedent
The need for a probate attorney does not arise until after death, when the deceased’s estate has to go through probate based on the laws of the state. If you have suffered the loss of a loved one and are headed for probate, the experienced team at Wagner & Wagner can guide you through the process. Call our Chattanooga probate attorneys at 423-756-7923, or complete a contact form on our website to schedule a consultation. Serving Chattanooga, Cleveland, and the surrounding areas.