What’s the Difference Between a Probate Attorney and a Probate Litigation Lawyer?

What’s the Difference B…

If your loved one passed away, their assets will usually need to be distributed through the probate process. In the best-case scenario, the decedent’s wishes will be outlined in a valid will that specifies the beneficiaries who will receive which assets. Usually, an estate can be administered without issue. But if there is no last will and testament, or an heir argues that the will should be rendered invalid, the need for litigation can arise. It’s important to understand the difference between probate administration and probate litigation — and what a lawyer’s role is for each matter.

What Does a Probate Attorney Do?

When a person dies, the property and assets they owned during their lifetime are referred to as their estate. A probate attorney helps to administer the estate in accordance with the instructions left in the decedent’s last will and testament — or if there is none, under intestate law. While the specific role a probate attorney will play can depend on the facts of the case, they generally help to make the legal process of settling an estate less overwhelming by providing insight and guidance each step of the way.

A probate attorney can provide crucial legal assistance to the executor and beneficiaries of an estate by helping with the following administrative matters:

  • Identifying the property and assets in the estate
  • Locating beneficiaries
  • Notifying creditors
  • Collecting the proceeds from the decedent’s life insurance policy
  • Satisfying debts and paying bills
  • Ordering real property appraisals
  • Preparing and filing all necessary paperwork with the court
  • Distributing assets
  • Retitling assets
  • Closing the estate

In the event the decedent owned property in more than one state, a probate attorney can communicate with the attorneys who are handling the ancillary probate matters. They can keep you informed regarding the legal matters in connection with the property located in other jurisdictions.

What Does a Probate Litigation Lawyer Do?

A probate litigation lawyer handles matters in connection with estate disputes. These types of cases go beyond simply administering an estate. Not every probate case involves litigation, but when conflicts occur as to how the estate administration is being managed, conflict can arise.

Litigation may be necessary if a beneficiary believes there is an issue with the construction of the will, they have been wrongly disinherited, or the executor is not adhering to their fiduciary duty. In such cases, a probate litigation attorney can advise a client of their legal rights, represent their interests in court, and help develop a legal strategy for the best possible outcome.

Probate litigation lawyers can also help clients with the following contested matters:

  • Challenging the validity of a will
  • Contesting the interpretation of a will
  • Contesting the construction of a trust
  • Challenging the appointment of a guardian
  • Claims involving an executor’s breach of fiduciary duty
  • Trustee and executor removals

Probate litigation is not uncommon in families with complicated dynamics — such as those involving second marriages, family businesses, or where sibling rivalry is an issue. Significantly, probate can also be an opportunity for creditors to file claims against a decedent’s estate which may be necessary to contest. Regardless of the complexity of the dispute, a probate litigation lawyer will have a deep understanding of what it takes to resolve the conflicts that can arise during the probate process and will work to negotiate a settlement. If reaching a resolution through negotiation is not possible, they will know what types of evidence must be collected to build a strong case and present your argument at trial.

Some Probate Attorneys Handle Both Administration and Litigation Matters

While some probate attorneys might focus solely on either administrative matters or litigation, others practice in both areas. It can be crucial to work with an attorney who handles both probate administration and litigation if there is a risk that a probate matter would be challenged. In such instances, the attorney who is assisting with administering the estate will already be familiar with the facts and evidence in the case — and have the background knowledge and legal skill necessary to uphold your interests in the courtroom.

Unlike an attorney who only handles the administrative aspect of probate, an attorney who also litigates will know how to prepare the documents needed for the discovery process in probate litigation. This can include interrogatories and requests for production of documents. They will also be deeply familiar with conducting depositions, motion practice, and the rules of evidence to help ensure a positive outcome is reached in your probate litigation matter.

Contact an Experienced Minnesota Probate Litigation Lawyer

If you are facing a probate matter, a skillful probate litigation lawyer can help safeguard your rights and guide you through the legal process. At Dave Burns Law Office, I provide trusted counsel for Minnesota probate administration and aggressive advocacy for probate litigation matters. If you would like to discuss a probate matter, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I assist clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.

Categories: Probate

The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer