Estate planning attorneys and probate and trust administration attorneys play crucial but distinct roles in the legal processes involving legacy planning, asset distribution, and wealth preservation.
Estate planning attorneys focus on creating a plan to manage a person’s money, property, and affairs upon their death or if they are unable to manage it themselves. Probate and trust administration attorneys, on the other hand, deal with settling an estate or trust after the person has passed away. While there can be some overlap between these roles, not every attorney handles both.
As part of the estate planning process, you should discuss with your attorney the role they will play during your lifetime and whether they can also assist your loved ones with estate and trust administration when you pass away.
What Does an Estate Planning Attorney Do?
An estate planning attorney can help you create an estate plan when you are alive and offer ongoing plan reviews and guidance throughout your lifetime.
An estate plan provides answers to the most important questions about how your affairs should be settled not only when you die but also if you become unable to manage your own affairs. These questions include the following:
- Who gets my money or property when I am gone?
- Who will take care of my minor children if I am unable to?
- How can I pay less in taxes and keep more money for my loved ones?
- Will people know where to find my important records (e.g., estate planning documents, account information, or life insurance policy information)?
- Are the right beneficiaries listed on my accounts?
- Does it make sense to put some of my accounts and property into a trust?
- Is there somebody to act on my behalf if I am alive but unable to make or communicate decisions about my health or finances?
- How do I document my end-of-life care preferences?
- What are some ways to provide additional financial security for my loved ones?
Generally, estate planning attorneys recommend that every adult establish an estate plan, especially if they have loved ones they want to provide for. This means at least having a last will and testament (also known as a will) that specifies how your money and property should be distributed and to whom, including items with financial value and those with strictly sentimental value. A will also does the following:
- Names a trusted decision-maker (also known as an executor or personal representative) to settle your affairs and manage the court-supervised probate process, which validates the will and oversees distribution of your money and property
- Appoints a guardian (and backup guardians) for your minor children
- Directs the executor or personal representative on how to pay the costs of the estate, such as your outstanding debts, taxes, and probate fees
- Names your beneficiaries and states how your money and property should be distributed to them
In addition to preparing a will and helping you decide whether you might need one or more trusts, an estate planning attorney can assist with the following tasks:
- Selecting an executor and trustee
- Minimizing estate taxes
- Transferring accounts and property to a trust or naming a trust as a beneficiary
- Helping you choose the right beneficiaries and structure their inheritances to meet their needs
- Choosing agents under financial and medical powers of attorney
- Creating medical directives
Effective estate planning can minimize the time and complexity of the probate process and give your loved ones faster access to your money and property. An estate plan may not be able to eliminate probate entirely; however, without an estate plan, your money and property will be distributed according to state law—which may not align with your wishes.
The state may also have to get involved with choosing guardians for your children, authorizing others to act on your behalf, and deciding other important matters. The state’s decisions may be very different than what you would have chosen. In addition, a lengthy probate process can cause delays, increased expenses, and a loss of privacy. Having an up-to-date estate plan makes your wishes known and makes things easier for your loved ones.
What Does a Probate and Trust Administration Attorney Do?
A probate and trust administration attorney assists your loved ones with the estate or trust administration process after you pass away. They help your loved ones through the legal processes that your death sets in motion.
Probate Attorney
A probate attorney can work on behalf of the representative (i.e., the executor or personal representative) who you name in your will, or the person appointed by the court if you die without a will, to settle your financial affairs and carry out your final wishes. A probate attorney can also represent your beneficiaries in the probate process.
Some common duties that a probate attorney performs for clients include the following:
- Collecting life insurance proceeds
- Giving legal advice regarding the client’s responsibilities and rights
- Identifying and creating an inventory of what you owned at the time of your death
- Locating your will
- Managing the probate estate’s finances
- Overseeing appraisals for your property
- Making sure the executor pays any estate and income taxes owed and any of your outstanding debts that must be paid
- Preparing and filling necessary court documents
- Retitling accounts and property as necessary
- Transferring accounts and property to appropriate beneficiaries
Trust Administration Attorney
A trust administration attorney guides a trustee through the administration of a trust. Trusts are not subject to the probate court process, allowing the trust’s accounts and property to be distributed quickly and privately. However, the trustee may need assistance fulfilling their legal obligations. Trust administration attorneys may provide services to beneficiaries as well.
A trust attorney may be needed in the following situations:
- Reviewing the trust document and state law to guide the trustee through the steps that must be taken to ensure they are performing all required legal duties, such as keeping records, filing taxes, making distributions, and fulfilling their fiduciary responsibilities to act in the best interests of the trust’s beneficiaries
- Preparing legal documents necessary for the transfer of ownership of the trust’s accounts and property
- Identifying and resolving potential issues (e.g., conflicts of interest or improper beneficiary influence on the trustee)
- Helping a trust beneficiary assert their rights, including the right to be informed about the trust and its administration, the right to a trust accounting, the right to receive timely trust distributions, and the right to challenge how the trustee is administering the trust
What Type of Attorney Do You Need?
Some attorneys are qualified to perform estate planning and probate and trust administration services.
You may already have an estate planning attorney who you have worked with closely for years and who you would like to help settle your estate and transfer your accounts and property to the intended recipients. It may be wise to introduce your chosen decision-makers to this attorney, so they will know who to contact when you pass away. If this attorney cannot perform probate or trust administration roles, they may be able to recommend an attorney who can.
If you or a loved one needs assistance with creating or updating an estate plan, handling the estate of a deceased loved one, or administering a trust, please give us a call.