Do
I Need an Attorney For a Probate Court Proceeding?
Parties involved in
a proceeding do not necessarily require a lawyer to represent them.
Probate court forms are designed to be "user-friendly,'' and the probate
clerk or judge may offer limited assistance to people completing
required forms and reports. In the case of complex estates or
complicated family matters, however, an attorney should be retained, as
explained below.
Decedent's
Estates
The executor or
administrator of an estate should obtain legal assistance if:
- extensive help is
required;
- the estate includes
substantial or unusual assets, such as a closely held business or a
copyright;
- the estate is large
enough to involve the filing of a Federal Estate Tax Return;
- there are problems
involving taxation;
- the executor or
administrator has substantial questions concerning the law or
fiduciary responsibilities; or,
- the will or any matter in
the estate is contested.
Family Matters
In the
following matters, an attorney is required for the respondent (the
person who is the subject of the proceeding):
- guardianship, placement, and sterilization of the mentally
retarded;
- commitment of mentally ill adults and children;
- involuntary conservatorship;
- temporary custody or removal of guardianship for a minor child;
and,
- termination of parental rights (legal representation is required
for both the minor child and the respondent parent(s).
What can I expect?
The probate
courts have often been called "the people's courts" because they offer
simple, direct access to legal proceedings. They have also been
described as "neighborhood courts" because there is a probate court in
almost every town in the state. 123 of 169
towns have a probate court.
Convenience and efficiency are the hallmarks of the probate court.
The majority of uncontested matters are heard within four weeks of the
time a person goes downtown or drives to the next town to file the
application. In most cases, the probate courtroom will be a conference
room in the probate court offices. The atmosphere at the hearing is
informal; the judge does not preside from a bench or wear a black robe.
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