The probate process is often misunderstood, especially when it comes to the legal roles involved. Many people may be familiar with the term “probate lawyer” but are less certain about what a “probate litigation attorney” does and how these roles differ. While both are essential in the estate and probate process, their functions and focus areas are distinctly different.
The Role of a Probate Lawyer
A probate lawyer, also known as an estate lawyer, specializes in guiding individuals through the probate process after a loved one passes away. Probate lawyers are primarily involved in administrative tasks and ensure that the deceased’s assets are properly distributed according to their will or, in the absence of a will, according to state intestacy laws.
Probate lawyers handle the following key responsibilities:
- Filing the Will with the Probate Court: One of the first steps in the probate process is submitting the deceased’s will to the court for validation. A probate lawyer assists the executor (if there is a will) or the administrator (if there is no will) in completing this step.
- Guiding Executors and Administrators: Probate lawyers help executors and administrators fulfill their duties, such as identifying and valuing the deceased’s assets, paying off debts, managing taxes, and distributing assets to the rightful heirs or beneficiaries.
- Handling Legal Paperwork: The probate process requires substantial documentation. A probate lawyer ensures that all necessary filings are completed and submitted in a timely manner to avoid delays.
- Mediating Between Beneficiaries: In many cases, the beneficiaries may have questions or disagreements about how the estate is being managed. A probate lawyer can act as a neutral party to help clarify these issues and mediate disputes informally before they escalate into litigation.
- Estate Tax and Debt Management: A probate lawyer can provide advice on estate taxes and manage creditor claims against the estate, ensuring that debts are paid appropriately while preserving as much of the estate as possible for the beneficiaries.
The Role of a Probate Litigation Attorney
While a probate lawyer handles the routine administration of an estate, a probate litigation attorney steps in when disputes arise that cannot be resolved through mediation or informal discussions. Probate litigation attorneys specialize in handling legal conflicts involving estates, wills, and trusts, and their role is more adversarial in nature.
Probate litigation attorneys take on the following tasks:
- Will Contests: One of the most common reasons for probate litigation is when a beneficiary or interested party challenges the validity of a will. The contest may arise on grounds such as lack of testamentary capacity, undue influence, or fraud. A probate litigation attorney represents either the party contesting the will or those defending its validity.
- Breach of Fiduciary Duty: Executors, administrators, and trustees have a fiduciary duty to manage the estate or trust in the best interests of the beneficiaries. If someone suspects mismanagement, fraud, or misconduct on the part of the executor or trustee, a probate litigation attorney is brought in to pursue legal action. The attorney may either represent the fiduciary being accused or the beneficiary bringing the claim.
- Disputes Over Asset Distribution: Disagreements may arise between beneficiaries regarding how assets should be distributed. If these disputes cannot be settled informally, probate litigation attorneys are necessary to represent the interests of beneficiaries or other interested parties in court.
- Guardianship and Conservatorship Issues: Probate courts often handle cases involving the appointment of guardians or conservators for incapacitated individuals. When there are disputes about who should serve in this capacity or how an estate is being managed under conservatorship, probate litigation attorneys represent interested parties in court proceedings.
- Trust Litigation: In some cases, disputes arise over the terms or management of a trust. A probate litigation attorney may be called upon to handle claims regarding mismanagement by trustees, improper distribution of trust assets, or ambiguities in the trust document.
Key Differences Between a Probate Lawyer and a Probate Litigation Attorney
The main distinction between a probate lawyer and a probate litigation attorney lies in the nature of their work. Probate lawyers handle the administrative and procedural aspects of probate, ensuring the estate is properly managed and distributed. Their role is non-adversarial, focusing on facilitating a smooth probate process for the executor or administrator.
On the other hand, probate litigation attorneys step in when conflicts arise. They handle legal disputes that cannot be resolved through mediation, including will contests, fiduciary disputes, and asset distribution disagreements. Probate litigation is adversarial in nature, requiring attorneys with experience in courtroom procedures, discovery, and negotiation.