Probate Law is Not Estate Planning
Attorneys are like other professionals in that they are trained in all
aspects of the law and the degree allows them to practice across the spectrum.
However, just like other professionals, the attorneys very quickly become
specialists. Primarily this happens as they gain experience in one area
of the law over another – it would be very unusual, for example,
to find an attorney who created purchase contracts one day and defended
an accused murderer the next.
This phenomenon is partly due to the complexities of the law – no
one person can be well versed in all areas – and partly due to the
personality, talents and interests of a particular lawyer. From a practical
standpoint, it simply isn’t possible to gain in-depth experience
in multiple areas when each requires years of real-world involvement.
What Is the Difference between Estate Planning and Probate Litigation?
From the public’s point of view, estate planning, which includes
drawing up a will and/or creating a trust, seems very similar to defending
that plan in court. From a lawyer’s perspective however, the tasks
are very different. Drawing up the paperwork is proactive – the
attorney is trying to anticipate and head off any challenges while staying
within the restrictions imposed by law. Furthermore, an estate plan often
bridges the gap between concerns about legal matters and concerns about
Probate litigation is a different matter. Here, the attorney is part negotiator
and part trial lawyer. The process moves away from one where paperwork
is the focus to one where people and personalities come to the fore. Litigation
is very much a type of legal combat, although it’s (hopefully) bloodless.
Even if the matter doesn’t go to trial, there will be winners and losers.
Probate, and probate disputes, move an estate plan from the realm of the
abstract into the real world, where legal arguments will determine what
compromises have to be made and how the will or trust will actually be
implemented. Unlike the quiet and peaceful atmosphere when the documents
were drawn up, we find many voices and conflicting goals. The litigator
will make sure your voice is heard, and your goals are their goals.
Disputing a Will or Trust
One area in particular is unique to litigators – challenging the
legal status of a will or trust.
The purpose of probate proceedings is to ensure an orderly transfer of
property. It also meets the need to:
- Safeguard the deceased’s estate by preventing fraud, error or mismanagement.
- Disperse property in a fair and legal manner with the wishes of the decedent in mind.
- Resolve who is entitled to what assets – based on the intent of the
decedent and under the restrictions imposed by law.
- Determine and then pay all legal debts and taxes.
Any of these areas, as well as others not listed, can arise in probate
litigation and can influence the final outcome. While the original trust
and plan is one element to be considered, it can be challenged by a litigator
and changed by order of a judge. If the drafting attorney has made an
error, this can even lead to an action against that attorney. Of course,
the more complex the estate plan, the more likely it is to be challenged
in some part or portion.
In the final analysis, a mistake made in estate planning can often be remedied
by amendment or re-doing the estate plan while the person concerned is
still alive. But poor litigation at probate can, unfortunately, lead to
permanent loss and less than a just outcome for beneficiaries. There is
no “second bite at the apple.” For this reason more than any
other, hiring an experienced probate litigator is the wisest choice. Call
(510) 444-4430 for a free consultation with bay area probate and trust
attorney Steven M. Simrin or contact us via email.