What is the Difference Between a Probate Lawyer, an Estate Lawyer and a Probate Litigation Lawyer?

Some people mistake probate lawyers, estate lawyers, and probate litigation lawyers as the same type of lawyers, but they are different. Although they may deal with the common issues that arise when a person dies, probate lawyers, estate lawyers, and probate litigation lawyers have different areas of expertise and may focus on different aspects of the probate process. There are, however, some lawyers like us, who have expertise in all three aspects: the probate process, estate planning, and probate litigation.

Probate Lawyer

A probate lawyer is a lawyer who specializes in the probate process. This involves proving the validity of a will and the appointment of an executor, or if there is no will, the appointment of an administrator, who can administer the estate of the deceased person.

Administering the estate includes making an inventory of the deceased person’s assets, paying the funeral expenses, medical bills, debts and taxes, and distributing whatever assets are remaining to the beneficiaries or the distributees (the intestate heirs).

The main task of a probate lawyer is to get letters testamentary or letters of administration for their clients. Probate lawyers can also get preliminary letters so that their clients (the executors or administrators) can begin administering the property, even before the admission of the will to probate and the issuance of letters testamentary or of administration.

Estate Lawyer

An estate lawyer specializes in estate planning. In this case, there is no deceased person yet. The client is simply preparing for his death by making sure that the assets are in place and will be received by the client’s designated beneficiaries at the least possible cost. Some estate lawyers will also engage in Medicaid planning by using several legal tools and strategies to ensure that the client can be eligible for Medicaid benefits, in case the client needs long-term care.

Estate lawyers prepare wills and trusts, healthcare proxies, living wills, and springing or durable powers of attorney. This set of documents will ensure that the client’s financial affairs will not be displaced in case the client loses mental capacity. It also eliminates the need for guardianship proceedings in case of the client’s future mental incapacity.

Probate Litigation Lawyer

Not all probate and estate lawyers are probate litigation lawyers. Most probate and estate issues don’t normally result to litigation, especially when there is no will contest. For this reason, most probate and estate lawyers are not adept at probate litigation.

Probate litigation includes litigation that arises when there is a will or trust contest, preparing an accounting and objections to an accounting, requesting for the suspension or removal of an executor or administrator, asking for a restraining order to prevent the sale of estate assets at below market value, discovering and requesting for the turn over of the decedent’s assets that are in the hands of a third person, and disputing real estate transfers and designation of beneficiaries in financial accounts prior to the decedent’s death.

Unlike probate and estate law where there is usually no adversary, probate litigation arises when there is a dispute and parties have adversarial interests against each other.

Not all probate litigation will end in trial. Because attorney’s fees are usually taken from the estate and reduce the beneficiary’s share in the decedent’s assets, most disputes are settled to avoid the estate incurring unnecessary costs. A probate litigation lawyer is thus also adept at negotiating the best possible settlement for his client, given the unique circumstances of the case.

In summary, a probate lawyer focuses on the legal process of administering an estate after someone dies, an estate lawyer focuses on helping clients plan for the transfer of their assets after they die, while a probate litigation lawyer focuses on resolving disputes that arise during the probate process.

Although probate lawyers, estate lawyers, and probate litigation lawyers deal with a common probate law, they have different areas of expertise. Not all probate and estate lawyers are litigation lawyers, especially since litigation requires a special skill.

If you have a probate issue, it is best to find someone who has experience in dealing with the probate process, estate planning, and probate litigation. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Which Court Handles Probate in New York

Probate and administration proceedings are governed by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL). The case is filed in the Surrogate's Court of the county where the decedent was domiciled at death — for example, New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County, or Richmond County (Staten Island). Letters Testamentary are issued under SCPA Article 14 to the executor named in a valid will, while Letters of Administration are issued under SCPA Article 10 when there is no will. If there is a will but no executor able or willing to serve, the court issues Letters of Administration c.t.a. When there is no will, EPTL 4-1.1 sets the intestacy shares — for example, a surviving spouse with children takes the first $50,000 plus half the balance, and the children share the rest.

Small Estates: When Full Probate Is Not Necessary

Not every New York estate requires a full probate or administration proceeding. Under SCPA Article 13, if the decedent's personal property (excluding real estate) is worth $50,000 or less, the estate may qualify for voluntary administration, a streamlined small estate procedure that is faster and less expensive than full probate. Because the $50,000 threshold excludes jointly held accounts and assets with named beneficiaries, many modest New York estates qualify. We screen every matter for this option before recommending a full proceeding.

Timelines, Commissions, and Fees in New York Probate

In an uncontested case, Letters Testamentary are often issued three to six months after the petition is filed, with service of citations on distributees being the most common source of delay. Even after Letters issue, the executor should hold the estate open for at least seven months, the period under SCPA 1802 during which creditors may present claims, before making a final distribution.

Executor and administrator commissions are set by statute under SCPA 2307 on a sliding scale of assets received and paid out:

• 5% on the first $100,000
• 4% on the next $200,000
• 3% on the next $700,000
• 2.5% on the next $4,000,000
• 2% on amounts above $5,000,000

Attorney fees, by contrast, are not fixed by a percentage schedule. They must be reasonable, and the Surrogate's Court has authority under SCPA 2110 to review and fix a fee that a beneficiary believes is excessive. We discuss fees in writing at the outset of every engagement.