Do I need an attorney for probate law?

Asked almost 2 years ago - Rockledge, FL

Do I need an atty at probate court? I am listed as a beneficiary as "per stirpe". My uncle and aunt "found" a handwritten note by grandma saying she wants to remove the "per stirpe" item in her will. It is isn't witnessed, notarized. I am in another state, do I need to hire an attorney, or can I co0ntact the court an make my case?

Attorney answers (5)

  1. Marian Audrey Lindquist

    Contributor Level 17

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    Answered . The hand-written note is meaningless. You can contact the court on your own, however, to "make your case" you need a hearing. I don't know what case you want to make. If you are worried someone is going to keep an inheritance from you, you should hire an attorney who practices in the county where the probate is, and you should do it now.

    The contents of this answer should be considered friendly advice, not legal advice and the answer should not be... more
  2. Shawn C Newman

    Contributor Level 14

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    Answered . Thanks for your question. Since I am an attorney, I cannot ethically give you specific legal advice on your situation since you are not my client, but I can provide you with general information that you may find helpful.

    In order for a change to a Will to be honored, it must be executed with the same formalities that the original Will. Such a handwritten note would not be respected by the Court.

    But you say you are listed as the beneificary already. The per stirpes designation would only change how the item would pass if you had predeceased your grandmother.

    There should be an attorney that represents the estate of your grandmother, but based upon your information, I am not sure that there is any issue and that distributions would be made as part of the normal probate process.


    Without more information, the best advice that I can recommend to you is to contact an attorney in your area and discuss the situation further. This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship.

    Best of luck to you,
    Shawn C. Newman, Esq.
    Attorney At Law 710 NE 26th Street
    Wilton Manors, FL 33305
    (877) 552-9385
    Email: Shawn@ShawnNewman.com
    Licensed to practice law in New Jersey, Florida and the District of Columbia

    Without more information, the best advice that I can recommend to you is to contact an attorney in your area and... more
  3. Tanner Woods Pittman

    Contributor Level 12

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    Best Answer
    chosen by asker

    Answered . "Per stirpes" means "by the stem," which in inheritance law means that a share of property passes down to the descendants of a deceased individual heir. It is used in a will instead of, for example, "per capita," which implies that property passes to every heir in equal shares , regardless of their degree of distance from the testator. (E.g., great-grandchildren get the same share as a child in a per-capita distribution of an inheritance).

    If a will is silent on the question, the law assumes that the testator leaves property "per stirpes." By removing the words "per stirpes" from a will, a testator would do nothing more than make the will silent on the question, which would not defeat the default idea that people inherit per stirpes. As you can see, it really is odd that someone would take the time to write out a note trying to remove these two words from her will.

    As the other attorney answerer noted, an unwitnessed writing of your grandmother's is a nullity and will not revoke a provision of her will. (With some rare exceptions ).

    In any event, your relatives will have to serve you with notice of any probate proceeding in Florida once they file one. If they are going to seek to probate the writing that removes the "per stirpes" language, they will have to serve you with notice at the time they do. Once served, you will be able to make a better determination whether you will need to retain a lawyer.

    If you can't count on your relatives to properly serve you with notice of the probate proceeding, it may be a good idea to regularly call the probate court of the county where your grandmother died to determine whether a filing has been made.

    Please accept my condolences for the death in your family.

    No attorney-client relationship or privilege is formed by this communication.
  4. Rebecca Sarah Berdugo

    Contributor Level 12

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    Answered . If you are in another state, I would contact an attorney in that state. The money spent by travelling to that state, taking off work, finding a place to stay and the hassle of it all may be the cost (or more) of hiring an attorney. Also hiring an attorney would give you the peace of mind that things are being done properly.

  5. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

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    Answered . Yes-you need an attorney. The handwritten note will not be valid.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more

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