There are three primary types of lawyers who work with estate law: probate lawyers, estate lawyers, and probate litigation lawyers. While they both work in the same area of law, probate lawyers handle the probate process after an individual passes away, while estate lawyers help living clients set up wills, trusts, or other estate planning documents before their death. And probate litigation lawyers handle the disputes that arise from the creation or administration of an estate.
What is a probate lawyer?
A probate lawyer helps an executor or administrator to administer an estate after someone dies.
In some situations, a probate attorney may simply serve in an advisory capacity, while in others, they will take a more active part in the administration of the estate, depending on your needs. Your role, and the role of your probate lawyer, will depend, in part, on whether the decedent left a will.
What if there is a will?
When someone dies “testate,” meaning they left a will, a probate lawyer will counsel the executor of the estate on various legal matters. Depending on the complexity of the estate and the terms of the will, a probate lawyer may also perform any of the following tasks:
- Lodging the will with the local probate court
- Preparing and filing probate court documents
- Helping to Identify and secure the deceased’s assets
- Helping obtain appraisals for the deceased’s real and personal property
- Helping determine the estate’s debts and negotiate their payment
- Helping manage the estate’s finances
- Advising on non-probate assets, such as life insurance proceeds and bank accounts
What if there is no will?
When someone dies without a valid will, they are considered to have died “intestate.” If this occurs, the deceased’s property will be distributed according to their state’s intestacy laws, even if the result would be contrary to the deceased’s desires. Intestacy laws can be complicated, particularly in “community property” states such as California.
In situations like this, it is helpful to have a probate lawyer assist a relative of the deceased in securing appointment as administrator of the estate. A probate attorney can also advise the administrator of the estate on how the assets must be distributed under the state intestacy laws and help with the administration process, which includes similar tasks as when an individual dies with a will.
What is an estate lawyer?
An estate lawyer is a legal professional who assists people in planning their affairs to ensure the administration of their estate goes smoothly.
Estate lawyers ensure that a client has documented their wishes so that they may be carried out after their death, including through wills and trusts. They also advise people on how to save money on inheritance taxes and probate costs, what type of trusts are best for them, and other legal matters related to estates.
What is a probate litigation attorney?
Probate litigation attorneys are lawyers that represent clients in contested probate court proceedings to resolve disputes such as will and trust contests, breaches of fiduciary duty by executors and trustees, and contested personal representative appointments, and if those matters cannot be resolved to take those cases to trial.
While a solid estate plan can help the probate process go smoothly or avoid it entirely, all-too-often disputes arise that lead to lawsuits. Probate litigation attorneys help heirs, beneficiaries, executors, administrators, trustees, and creditors navigate the complicated probate litigation process to help secure the best possible outcome for their case.
If you are involved in a conflict regarding the administration of a loved one’s estate, or if you believe a will, codicil, trust or amendment was the product of fraud, undue influence, incapacity or financial elder abuse, you should contact a probate litigation attorney as soon as possible. Probate litigation involves specific probate and civil procedure rules that must be followed in order to succeed, so it’s essential that you retain an attorney with an intimate knowledge of the probate litigation process and the probate courts, rather than a probate attorney or estate attorney.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.