Jack of all Trades, Master of None; Why your estate planning attorney should not be your probate attorney

Spoiler Alert: estate planning and probate are not the same things. Full disclosure, I am a probate attorney and not an estate planning attorney. Yes, there is a distinction, and yes that distinction is important. Before you seek out someone to prepare your will or trust and before you refer your clients to someone for a probate matter, there are some things you should know.

Most of the time estate planning and probate gets lumped into the same category. Even the Florida Bar has a certification titled Wills, Trusts & Estates. However, as an attorney whose practice is 100% dedicated to probate, I can tell you that though similar, they are not the same. I have attended countless networking events (with lawyers) and been asked hundreds of times what type of work I do and when I respond by saying that I am a probate attorney, almost without fail, the asking attorney responds with, “Oh, so you do wills and trusts, right?” I generally answer by saying, “Eh no, not really. I deal with legal issues after death. Wills and trusts are done before someone dies.”

The difference is really very simple. Estate planning happens before you die, and probate happens after you die. Generally, estate planning is done in order to avoid probate. Estate planning usually involves creating documents such as a last will and testament, some sort of trust and a variety of other documents depending on the person’s assets and a whole host of other factors. It is transactional in nature, and its focus is on planning for the inevitable — death.

You could think about this in terms of family law. Nowadays, prenuptial agreements are done because many people believe divorce to be somewhat inevitable and they want to avoid a messy divorce. This is somewhat the same concept. Everyone is going to pass away; therefore, people prepare an estate plan so that their family does not have a potentially messy probate.

Probate, on the other hand, is done after someone dies and is part of administration. It is the formal process by which an estate is handed out after someone passes away. The administration is the technical steps the attorney takes to actually manage the estate. Basically, it is a process overseen by the courts to determine who gets a person’s stuff after they die. Probate can be somewhat transactional in nature in that it always involves preparing legal documents. However, contrary to estate planning, probate involves the court system, judges, e-filing, hearings, etc. It is common that there is controversy between the beneficiaries which means full-blown litigation.

So yes, both estate planning attorneys and probate attorneys deal with more or less the same topics — wills, trusts, money, death, etc. However, I would argue that they are different areas of law which means that estate planning attorneys and probate attorneys do not necessarily have the same skill sets. Estate planning is more transactional in nature while probate involves going to court and litigation. Another comparison might be that of business attorneys. Just because a business attorney knows how to draft a complex contract, does not mean that he or she would be able to go into court and litigate a breach of that contract.

Now, how do you, the practitioner, know whether or not the potential client is seeking an estate planning attorney or a probate attorney? Most people are pretty familiar with the idea of estate planning. Financial advisors, accountants, and LegalZoom all express the importance of doing some sort of estate planning like a last will and testament. It will likely be pretty clear whether or not a potential client needs to do some estate planning as they will ask you if you do wills or trusts because they want to protect their assets and make sure their family and loved ones are taken care of after they die. However, a potential probate client is a little more difficult to spot. So, when are you, the non-probate attorney, likely to spot a potential probate issue. The three most common scenarios we see are the following:

  1. Real Estate. Let’s say John Smith owns his property and he is the only one on title. When he dies, the property is now owned by The Estate of John Smith. In order for his heirs to take ownership of the property, they will have to open a probate.
  2. Personal Injury. In order to open a wrongful death lawsuit or bring a claim on behalf of someone who has died, a probate must be opened and a personal representative appointed.
  3. Someone has died with assets that need to be transferred. Most people pass away without any sort of estate plan in place. Generally, if they have any assets, a probate will be necessary. Many people have some sort of policy, such as 401(k) or insurance policy, and they have not named a beneficiary of that policy, or the beneficiary on the policy predeceased the policy owner. In that case, a probate needs to be opened in order to transfer the funds from those policies to the decedent’s beneficiaries.

Now, when you are trying to determine whether or not you or your client needs to do an estate plan or needs help with a probate matter, you can think the following: estate planning comes before death and probate comes after death. Hopefully, that clears up the confusion!

The Law Offices of Justin B. Stivers handles probate matters exclusively. Please send us an email at info@jbstiverslaw.com or give us a call at 305-456-3255.

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As an efficient and results-driven law firm, The Probate Law Firm will keep the probate process simple so you can focus on more important matters.

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