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Probate Attorneys

Lawyers and Attorneys

Probate attorneys generally practice in five areas of law: probate administration, trust administration, probate litigation, trust litigation and estate planning.

Probate administration involves the transfer of assets according to a person’s will, or in a case where there is no will, under the state’s laws of intestate distribution. 

During probate administration, a probate attorney usually handles the entire administration of the estate, including notification of the decedent’s creditors. Probate attorneys will also try to help the family avoid or limit estate litigation, including the contesting of the will. The attorney will also provide services such as organizing, preserving and protecting the estate’s assets and evaluating any issues of exempt property, family allowance and minimizing estate taxes.

Trust administration involves the administration and transfer of assets according to a trust agreement. Probate attorneys will also help with any special forms that need to be filed including the Estate (and Generation Skipping) Transfer Tax Return; state estate tax returns and the Fiduciary Income Tax Return. Each state may have its own variation of these forms.

A trust may be written in a way that can be confusing. A trust attorney can help the trustee avoid any problems with the trust. Probate attorneys can also help the trustee to avoid making decisions that would lead to his independence or neutral position being questioned.

Probate litigation encompasses many different types of lawsuits. A relative or very close friend of the deceased generally files these lawsuits. If someone thinks the deceased lacked the mental capacity to sign a will or that someone caused undue influence over the signing of the will, that person may initiate a lawsuit against the estate.

Other issues that may be brought to court include the abuse of a power of attorney, fraud involving lifetime transfers of property, fiduciary breach, elder abuse, elder alienation (wrongfully turning an elderly person against another friend or relative), tax apportionment issues, forgery, contested appointments of personal representatives, entitlement issues and creditor claims.

Trust litigation involves many of the same issues as probate litigation, but also includes any wrongs the trustee may have allegedly committed.

A good probate attorney will also have the experience to handle estate planning, such as wills and living trusts, irrevocable life insurance trusts, educational trusts, personal residence trusts, family trust planning, premarital agreements, post-marital agreements, business planning and succession planning. 

Related topics: Family Law, Civil Lawyers

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