Estate and Probate Law
After a person dies, the law intends for an orderly passing of that person's assets to family members. Each state has certain laws that create a framework for how the passing is intended to happen; usually, the person's assets are divided among his or her immediate family. However, in real life, family relations can be very complicated, and little might be in black and white. The time after the death of family member can often be a time of family in-fighting over who deserves what.
A person, while still living, can write a will to either to straighten out the passing of assets after death, or if he or she would like to distribute assets differently than the law provides. However, wills can still contain complicated legal issues. When any such matter is litigated, it may go before a probate court or a regular civil court, depending on the jurisdiction. Parties may hire an estate and probate lawyer to represent their interests.
Estate and Probate Law Information Center
- Distribution of Assets After Death
- Key Issues in Estate and Probate Law
- Estate Law Certification
- Hiring an Estate and Probate Lawyer
- Estate and Probate Resources
If a person dies without a will, it is called being "intestate." The law will designate certain people to inherit the deceased's assets, called the "estate," when that person dies. These people are called "heirs," and the scheme by which they are designation is called "succession." Succession is determined by the laws of the state. Most states have adopted the Uniform Probate Code, which has been approved by the American Bar Association. However, many states have altered or created variations of the Code.
The line of succession, even under the Uniform Code, is very complicated and depends greatly on the remaining family of the deceased and upon the value of the estate. If the deceased has a surviving spouse, that person will usually receive the greatest share, followed by any children the deceased may have had. Succession can both travel down, to the deceased's children, and up, to the deceased's parents. If no heirs can be identified, the estate usually escheats, meaning it becomes property of the state.
- Wills: A person can direct how they want their estate distributed by writing a will. A will appoints an executor to carry out the will's demands. However, there are usually stringent legal requirements for a will. Additionally, the writer of the last will and testament, called the "testator," will not be available to testify to his or her intent, so the will must be very clear and cover many contingencies. For this reason, most people leave the writing of wills to lawyers.
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- Trusts: There are typically large taxes that are levied on a deceased person's estate when it is distributed. A trust may help avoid some of those taxes. Additionally, trusts allowed the testator to have firmed control over how the assets are handled, which can be particularly important if the heir is a child or other person not competent to handle the assets.
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- Probate: Probate is the process of administering a will. It could include litigation if the will is contested by any interested parties. Interested parties may hire a probate lawyer to represent their interests in this process.
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- Estate Planning: An attorney can help his or her client examine the whole of his or her estate and advise the client on the best possible way to distribute it.
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Many attorneys practice exclusively in probate court and on probate matters. However, fewer attorney take the effort to become certified probate and estate lawyers. Certified probate and estate lawyers have earned the approved of an independent national or state body, showing they have met certain requirements.
- National Association of Estate Planners & Councils: The NAEPC is a national organization of professionals, including attorneys, involved in estate administration and probate. NAEPC may designate an attorney as an Estate Planning Law Specialist. An EPLS must meet experience and education requirements, carry insurance, provide references and pass an exam.
- State Bar of Arizona Board of Legal Specialization: Attorneys in Arizona may become certified in estate and trust law by the State Bar BLS. At least 50 to 70 percent of the attorney's practice must be in estate and trust, he or she meet certain experience requirements and he or she must pass a written test.
- State Bar of California Board of Legal Specialization: California attorney can become certified by the State Bar in estate planning, trust and probate law. Lawyers seeking certification must have practiced for five years, spend at least 25 percent of their practice time in that practice area and pass an exam, among other requirements.
- Florida Bar Board of Legal Specialization and Education: Florida lawyers can seek certification in wills, trusts and estates. Florida lawyers must show attainment of minimum experience and education, and pass an exam to be certified by the Florida Bar.
- Louisiana Board of Legal Specialization: In Louisiana, lawyers may become certified in estate planning and administration. Estate attorneys must show they meet certain experience and education requirements, in addition to passing a test.
- New Mexico Board of Legal Specialization: Attorneys in New Mexico may be certified in estate planning, trust and probate law. There are necessary requirements to be met in involvement in the practice and experience, and the lawyer must pass a test.
- North Carolina State Bar Board of Legal Specialization: North Carolina attorneys may become certified in estate planning and probate. They must meet requirements for experience and education and pass a written exam.
- Ohio State Bar Association: The OSBA is accredited to certify attorney in estate planning, trust and probate law. Lawyers seeking certification must meet certain experience and involvement criteria, pass a test and meet other requirements.
- Supreme Court of South Carolina Commission on Continuing Legal Education and Specialization: Lawyers in South Carolina can seek certification in estate planning and probate law from the CCLES. To become certified, lawyers must show substantial involvement, experience, provide references and pass a written exam.
- Texas Board of Legal Specialization: Texas lawyers may seek certification as specialists in estate planning and probate. To become certified, attorneys must show substantial involvement and experience, provide attorney references and pass an exam.
When a person is hiring an estate and probate lawyer to write, it must be someone they are entrusting with the ability to create a plan that will go on without them. To contest a will, the lawyer must be able to find any and all flaws and issues. These and any other estate and probate issues require an attorney with close attention to detail and a vast and comprehensive understanding of the law. A certified attorney has met rigourous standards to prove such a capability.
Additionally, a lawyer who is a member of a professional organization dedicated to estate law, like the American College of Trust and Estate Council, have access to ongoing discussion, resources and continuing legal education.
The Most Common Trusts Used for Estate Planning in the US
The most common trusts used for estate planning include:
- Children's Trusts
- Revocable Living Trusts
- Credit Shelter Trusts
- Special Needs Trusts
- IRA Beneficiary ('see-through') Trusts
A trust and estate attorney can help you understand the role of each type of trust, the tax consequences of the trust, and the best ways to draft and fund the trust.
The Most Common Mistakes in Estate Planning
People often make mistakes when planning their estate issues especially when drafting wills and administering estates after someone dies. The most common mistakes include:
- the failure to write a will
- having an inexperienced attorney write your will or prepare your estate plan
- the failure to have a revocable trust
- not owning your life insurance policy
- the failure to provide for the necessary flexibility in an estate plan
- the improper use or the failure to properly fund the “lifetime” trusts
- the failure to properly coordinate retirement accoun designations with the estate plan
- the outright bequests to young or immature children
- the failure to coordinate beneficiary designations with the will
Uniform Probate Code: Maintained by the National Conference of Commissioners on Uniform State Laws, the Uniform Code is the basis for probate law in most states.
National College of Probate Judges: Find a nationwide organization of judges who preside over probate matters.
This article was last updated on Friday, September 15, 2017.