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Difference Between Probate, Trust, and Estate Lawyers

We are lucky to live in a great part of the United States, the country that is still the most stable and prosperous in the world. We are fortunate to have a great entrepreneurial spirit: success often comes easy to those who focus and work hard. We applaud that success and have focused on providing professional services to support that hard work and material success by protecting your assets and helping you to see that it is distributed according to your wishes. That will at minimum take the work of estate lawyers, often trust and probate lawyers as well. Life is unpredictable, full of twists and turns, and things happen.

Trust Lawyers

As the name might imply, this group of lawyers specializes in providing legal advice related to trusts to beneficiaries, funders, and trustees, among other interested parties. A trust, as opposed to a will, should help keep an estate from the probate process, which is discussed below, thus resulting not only in the saving of time but also in the protection of privacy. A will may be required if there are minor children because a trust cannot dictate where your children will be placed if something should happen to you.

Trust lawyers will be proficient in state law and know the pros and cons of various legal instruments. For example, there are numerous types of trusts, including revocable, irrevocable, QTIPs, testamentary, charitable, special needs, etc. (For more information on two common trusts, please see our post on, The Differences Between Revocable and Irrevocable Trusts.)

If you are the beneficiary of a trust and you believe that either the assets of the trust are being wasted or misappropriated or that you are otherwise not receiving your share, you can use the services of a trust attorney to bring the matter in front of a judge. You can ask for an accounting and petition the court for modifications to the trustee’s actions.

The job performed by trust lawyers overlaps with estate lawyers. If you have questions about what services either provide, we are happy to answer them. We provide services in all three categories.

Estate Lawyers

The role played by this group of lawyers is to assist living clients in meeting their estate planning goals. This includes drafting wills, trusts, and powers of attorney with the goal of creating an individualized plan. Another role of this type of lawyer is to minimize or eliminate tax liability. The federal government and some states require estate taxes for certain sized estates. Some but not all states require capital gains tax when you sell stock. For example, California’s capital gains tax for stock gains reaches 13.3%. Texas and Nevada have a zero percent rate. Elon Musk, founder of Tesla and SpaceX, did not move to Texas just because he likes country music…he maintains billions of dollars in stock gains.

The underrated skill of attorneys in this category is exceptional customer service. Due to the private and sensitive nature of the discussions underlying this category of transactions, you should find an attorney that understands your situation and what your needs are. As important as the understanding of the law and tax code is their human touch. Our firm excels in these areas and has assisted a wide range of individuals, families, and institutional clients. Because you cannot take it with you when you die, allow us to help you make sure it ends up where you think it will best serve.

Probate Lawyers

This category of attorneys takes care of estate administration after an individual dies. Probate is a court-supervised process that occurs after an individual dies. If the individual did not designate an administrator, a probate attorney might have to serve the estate as administrator, or executor, or assist one who is appointed. Affairs are often sensitive when a loved one dies and these roles are important, as there is a list of things that need to be done. If there are no significant assets, an estate might be able to work things out without an attorney. This is more likely if family members are in accord, and no one is talking about contesting the will.  If there are complicated real estate holdings and significant assets, legal advice should be sought. When the debts outweigh the assets, some creditors will have priority over others. A seasoned attorney can often help parties avoid a lengthy court battle. Our attorneys can provide as much or as little assistance as you think you might need.

When a person dies with a will, the executor will submit the will to the court and prove that it is valid. She will have to marshal the assets of the estate and manage and distribute them. A probate attorney can help with complicated matters, including dealing with creditors, collecting life insurance, appraising and selling property, making the final distribution of assets. If there is no will, the individual has died intestate, and property will be distributed under state law.

It goes without saying, but all of the above attorneys need to be licensed in the state of California or in the jurisdiction where you are seeking their advice. The law can vary significantly from state to state, and mistakes can be quite costly. Experience matters, and you should seek attorneys who are certified in the relevant practice areas.

Protecting your Wealth, Well-being, and Assets

In stable times and crises, good advice from experienced professionals is invaluable. Our proficient attorneys can provide planning tools and legal instruments to protect and maximize growth, direct assets to the heirs of your choice, and reduce risks. We are happy to assist by fielding your questions, providing legal advice, examining your estate plan, and any task that can help move you towards this step. Call the trusted estate planning attorneys at Lowthorp, Richards, McMillan, Miller & Templeman at (805) 981-8555 or fill out our online contact form. Our attorneys live and work primarily in the California Tri-Counties area – Ventura, Santa Barbara, and San Luis Obispo.

NOTE: The information contained herein is not intended to be legal advice and the reader should know that no Attorney-Client relationship or privilege is formed by the posting or reading of this article which is also not intended to solicit business.

Cristian R. Arrieta, Lowthorp Richards McMillan Miller & Templeman, A Professional Corporation, 300 E. Esplanade Drive Suite 850, Oxnard, CA 93036