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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

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Distribution of Assets After Death

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.

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Key Issues in Estate and Probate Law

  • 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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Estate Law Certification

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.

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Hiring an Estate and Probate Lawyer

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

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Estate and Probate Resources

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.