If you are settling a loved one's estate for the first time, you are most likely new to the concept of probate and might hear the terms “contested” and “uncontested” probate and want to know what these terms mean.

To put it simply, if there are any contests, meaning there are any objections, then the probate process would then be referred to as “contested probate”. So, as you might have guessed, uncontested probate is when there are no objections.

The process of probate includes submitting the decedent's will, if there was one, obtaining letters of testamentary or a letter of administration from the probate court of the county where the decedent lived, notifying heirs and beneficiaries, marshaling the decedent's assets, paying off any valid debts, and then distributing the assets to the beneficiaries of a will, or to the heirs at law if there was no will, and then closing the estate. As you can see, there are many steps associated with this process.

Other people, primarily beneficiaries and heirs, can institute challenges to contest the probate proceeding for various reasons.  A few common examples of contests involving a will include:

• Someone challenges the admission of the will with the allegation that the will was not properly signed and witnessed in accordance with state law.
• Someone challenges the will asserting that the decedent did not have the legal capacity to sign it or was unduly influenced or defrauded into executing the will.
• There is a dispute over who should serve as the executor.
• There is an allegation that there is a more recent will that revokes the previous will that was offered for probate.
• A discovery of paternity/maternity may arise when someone alleges that they are the child of the decedent and were not identified as such in the will and improperly disinherited.

In the case where someone died without a will, also referred to as dying “intestate”, a challenge may be filed in probate over who should be appointed the administrator of the estate or exactly how the property is to be divided among the heirs under state law after the decedent's bills have been paid. These are only a few instances where a probate case may become contested.

As stated previously, an uncontested probate case is when everyone is in agreement with who is appointed over the estate and about the admission of the will to probate, assuming there was a will. If there is no will, then the probate case would be uncontested if everyone is in agreement with who is serving as the administrator and how the assets are distributed among the decedent's heirs in accordance with state law. In short, uncontested probate means everyone agrees with each other and there are no issues pertaining to the how the estate gets settled and/or who will settle it. Uncontested probate cases are processed faster, easier and is a less expensive process than a contested case.

So, do I need an attorney if my probate case is uncontested?

Simply put, no, you don't need an attorney in the sense that you have to have one.  But, the probate process is somewhat rigid and the state laws and court procedures have to be followed in detail.  Failing to do so can result in delays to the process, which may already take more time that you may expect.  For these reasons, many people choose to hire a probate attorney to help them navigate the process, especially those who are unfamiliar with probate. Here in Georgia, many people might hire a probate lawyer to get them through the appointment process (appointed as executor or administrator of the estate) get some guidance on what steps to then take, and then handle things on their own after that point, coming back to the probate lawyer if any issues are encountered along the way. Others choose to hire a probate lawyer to handle everything from start to finish. 

Even when there are no contests, an attorney could help alleviate some of the stress that may be associated with going through probate. At Peach State Wills & Trusts, we help folks settle their uncontested probate cases. If you or someone you know needs help with this, we welcome you to give us a call at (678) 344-5342 or contact us here.