Processing the death of a loved one is an emotionally challenging time, and if you’ve also been named the executor of the estate, it can feel like an entirely different kind of pressure has been placed on your shoulders.
Probate is the legal process for validating a will and settling an estate after death. It’s how debts and taxes are paid, how remaining assets are administered and distributed, and how disputes are resolved.
But if you’ve had no prior experience in these matters, the process can easily become overwhelming. In fact, it’s not uncommon to turn to legal professionals for help navigating probate. But seeking legal help quickly brings up a practical question: do I need a probate administration lawyer or a probate litigation attorney?
Each of these legal specializations serves a different purpose, but because these terms are often used interchangeably, it can be difficult to know where to turn for help navigating the probate process.
Hays Firm is a Chicago-based probate administration and probate litigation law firm, handling both areas for Illinois families. Today we’re going to break down the differences between probate administration lawyers and probate litigation attorneys, clear up any ambiguities, and demonstrate exactly when you need the services of each.
What is a Probate Administration Lawyer?
In many cases, whether a person has a will or not, their estate must pass through the probate process after death. This is handled by the person named as the executor of the estate in the decedent’s will, or someone who is appointed to the role by the probate court in the event there is no will.
While many executors may choose to handle things on their own, when an estate is larger or has more complex assets, a probate lawyer is often called upon to assist with the administration of the estate.
Probate lawyers are also known as probate administration lawyers and probate attorneys, but regardless of the term used, the role remains the same: they offer their expertise and assistance to executors, helping them fulfill their legal responsibilities in a timely and accurate manner.
Some areas where probate administration lawyers can assist executors include:
- Filing a will
- Determining if probate is necessary
- Drafting a petition to open a probate estate
- Providing legal advice
- Settling debts and taxes
- Gathering and inventorying estate assets
- Securing appraisals of real estate, jewelry, and other property
- Guiding estate administration
Working with a probate administration lawyer significantly reduces the burden of the probate process placed on executors, allowing them to balance their daily responsibilities with their duties as executor.
What is a Probate Litigation Attorney?
Probate lawyers deal primarily with the administration of an estate, but when there are disagreements between heirs, beneficiaries, or even creditors over how the estate is being distributed, probate litigation attorneys are often called upon.
Probate litigation attorneys, also referred to as probate litigation lawyers or probate dispute attorneys, represent their clients in court proceedings whenever a disagreement cannot be resolved amicably.
Probate dispute attorneys can represent clients regarding a variety of issues in the probate process including:
- Challenges alleging undue influence, fraud or forgery, lack of testamentary capacity, or improper execution
- Claims of fiduciary misconduct by the executor
- Disputes over how assets are distributed
- Disputes over who is a rightful heir (particularly in mixed families, or when no will was left behind)
Probate litigation lawyers can be hired to represent challengers or to represent the estate itself in negotiations intended to resolve the issue amicably. When needed, probate dispute attorneys can file the required paperwork and represent their client in probate court.
When Do You Need a Probate Litigation Attorney Instead of a Probate Lawyer?
In most cases, a probate administration lawyer can provide all the assistance that an executor would need to successfully fulfill their obligations to the estate.
But oftentimes when an estate holds significant assets, a challenge can occur, even when the will or trust specifically states how assets are to be divided.
Below are some of the most common situations where a probate litigation attorney is needed instead of a probate lawyer:
- There are accusations of undue influence, fraud, lack of capacity, or challenges to the validity of a will or trust
- There is disagreement between family members over how specific assets are distributed, such as real estate or businesses
- You, as the executor, have been accused of misconduct or breach of fiduciary duty
- You are a beneficiary who believes misconduct has occurred
- There is a dispute between creditors and the estate over the amount owed
- A beneficiary has been disinherited unexpectedly and wishes to challenge this
- Other disputes have delayed the probate process
If any of these circumstances apply to your situation, or if the probate process has become openly hostile between family members, a standard probate administration lawyer may no longer be enough to resolve the issue.
Can One Lawyer Handle Both Probate Administration and Probate Litigation?
Because probate administration and probate litigation are essentially two different matters, can one law firm handle both?
The answer depends on the firm. Not all probate lawyers litigate, and not all probate litigation attorneys handle estate administration.
Litigation requires a different set of skills including motions, discovery, and court appearances. By contrast, probate administration is largely tasked with filing documents like wills and petitions, taking inventory of assets, and making payments to creditors and distributing assets. Both fall under probate law, but involve different responsibilities.
While not every probate case will ultimately require litigation, working with a law firm that is capable of handling both aspects is a wise choice.
Choosing to work with a firm that only handles probate administration can leave you scrambling to find a probate dispute attorney if litigation becomes necessary, particularly when the estate is high value.
By contrast, working with a probate litigation law firm from the beginning means you don’t have to suddenly look for a new attorney when challenges arise.
Hays Firm is a complete probate litigation law firm, with extensive experience as both probate administration lawyers and probate litigation attorneys. We guide our clients through the entire probate process, including representation in probate court if necessary.
Hays Firm: Skilled Probate Administration and Litigation Law Firm Serving Chicago Families
Both probate lawyers and probate litigation attorneys serve different, but vital roles in the probate process. Working with a probate litigation law firm that understands both areas can simplify the process and save you time and money should you eventually need representation in court.
Whether you have been tabbed as the executor of a loved one’s estate, or you wish to challenge a will or trust in court, Hays Firm in Chicago offers experienced help throughout the entire probate process.
Contact Hays Firm today to schedule an initial consultation around your probate needs, and let our team guide you through the process with compassion and care.
**Disclaimer**
The content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney for advice specific to your situation.
