What Is Estate Planning Law?

An estate consists of a person’s real estate and personal property at death. The practice area of estate planning law can include the following estate planning documents:

• Last will and testament
• Living wills
• Health care directives
• Living trusts
• Irrevocable living trusts
• Powers of attorney

A local estate planning lawyer can explain how estate law impacts your situation and provide targeted recommendations for your estate.

This article explains estate planning and probate law. You’ll also learn how a lawyer in this area can help you and how to find the best attorney for your estate plan.

What Happens if I Die Without a Will?

When someone dies without a will, their property is distributed according to state law to family members. Property is distributed to their next of kin according to state law.

Some individuals never create an estate plan. When this happens, the individual forfeits the ability to control property distribution if their wishes differ from state law.

Common Estate Planning Documents

Reasons for hiring an estate planning lawyer can vary widely. For example, some families create trusts to benefit minor children. A trust is a document similar to a will. Unlike a will, you can use a trust to manage property before death.

A trust is a legal arrangement in which one party holds legal title to another’s property as a trustee. The trustee manages the property on behalf of selected individual beneficiaries. Property held in a trust can avoid the probate process. As such, the probate court is not involved in administering the trust.

In addition to trusts, common estate planning documents include:

• Wills: Wills are legal documents specifying how an individual’s property and affairs will be transferred and managed after death.
• Living Wills: (Healthcare Directives): This legal document outlines medical and end-of-life preferences in case you cannot communicate these wishes.
• Power of Attorney (POA): Power of Attorney provides an agent authority to act on your behalf, such as handling personal finance matters.
• An Overall Estate Plan: Estate planning attorneys often work with clients more comprehensively. They do this by assessing an individual’s estate, asking about preferences and life goals, and advising on the client’s options.

Do You Need an Estate Planning Lawyer?

Depending on the estate’s complexity, the individual’s health, and other factors, practically everyone may need the services of an estate planning lawyer. Sometimes, individuals will work with a lawyer on behalf of a relative or loved one who can no longer manage their affairs.

How Attorneys Can Help With Estate Planning and Probate Administration

Estate planning and estate administration are closely related legal practice areas. Many attorneys who practice estate planning also do estate administration. Probate attorneys specialize in probate laws and estate administration. As such, probate lawyers focus on what happens after someone dies.

On the other hand, the attorney focusing on estate planning works with clients to plan for an estate while the person is living. The estate planning attorney will get to know you and your family’s situation and listen to your goals. The attorney will ask many questions. They need to determine the scope of your estate assets, the value of the estate, and your family composition.

For example, very wealthy families need to engage in federal estate tax planning to minimize the impact of these taxes. On the other hand, if you have a simple estate or a small estate, your attorney can advise you on how to streamline or eliminate the probate process.

Comprehensive Estate Plan

An estate planning attorney can help you create a comprehensive estate plan. This plan may include documents such as:

• Last will and testament
• Living trust
• Power of attorney
• Living will
• Advanced health care directives

Your attorney may recommend other documents and tools to facilitate the transfer and management of property after death. These include:

• Using beneficiary designations for life insurance policies, investment accounts, and retirement plans
• Transfer on Death (TOD) or Payable on Death (POD) for bank accounts
• Joint tenancy with rights of survivorship for real estate

Beneficiary Designations

An estate planning attorney will also advise you on the importance of keeping beneficiary designations up to date on bank accounts, life insurance policies, and retirement accounts. When you do this, these assets can be distributed directly to beneficiaries at your death without going through probate. The beneficiary designations control those particular assets even if there are contrary directives in your will regarding certain assets.

Real Estate

An estate planning attorney can also advise on how to title real property so that the property transfers without going through probate. For example, when you title a property as joint tenants with the right of survivorship, the property automatically transfers to the surviving owner by operation of law. An attorney can explain your legal options for real estate or any other questions relating to your estate plan or probate matters.

Costs for Hiring an Estate Planning Attorney

Whether you received a referral from a trusted friend, a local bar association, or FindLaw’s attorney directory, finding the right estate planning lawyer is essential. You should feel comfortable talking with the attorney, and they should take the time to listen to you. They should also be responsive to your communication.

When seeking help in estate law from an attorney, you may wonder what it will cost. Ask about the costs during your preliminary research stage. You do not have to wait until the first meeting. The attorney should break down their fee structures either by an hourly rate or by a flat fee.

Estate administration attorneys often charge a percentage of the estate after taxes. Both types of attorneys can use an hourly rate structure. With an hourly rate fee structure, the attorney will charge a certain hourly rate and multiply it by the time it takes to do the work. You will usually get billed monthly when the attorneys use an hourly rate fee structure.

The flat fee will depend on your estate planning goals and the particular estate planning documents you need. Your attorney should expect to provide fee information, so ask. You should have this information before the estate planning process begins.

What Is Probate and Estate Administration?

Most people own assets or carry debt at the time of death. A deceased person’s property is known as their estate. Estate administration generally refers to distributing a deceased person’s estate.

Probate also more narrowly refers to the process of validating a will. It’s the legal process of determining whether the last will and testament is valid. The personal representative or an executor nominated in a will and appointed by a probate court carries out the probate process.

Distribution of a Person’s Estate

Each state has its probate code, a set of laws governing what to do with the estate. These laws also explain how to accommodate the decedent‘s (deceased person’s) estate plan.

The distribution of a person’s assets occurs in one of two ways. If the decedent had a last will and testament, the estate will be divided accordingly. Estate administration will proceed according to the directives in the will.

A decedent without a will is said to have died intestate. In such cases, the deceased person’s property is distributed according to state laws of intestate succession. A state’s intestacy laws control the probate process when the deceased person dies without a will. State law determines an estate’s beneficiaries when someone dies intestate.

The state’s probate court system oversees the estate administration process. The state’s probate court system oversees the probate case. The probate proceeds until the estate closes. Closing an estate occurs once a person’s assets are distributed and liabilities paid.

How To Find an Estate Planning Attorney for Legal Advice

Once you determine you need an estate planning attorney or probate lawyer, you’ll want to find the best one for you. Your lawyer must understand:

• The various estate planning techniques
• How their strategies will impact your estate administration
• How to minimize the risk of probate litigation or a will contest

Being proactive now will help your loved ones detail what happens with your estate later. Done right, estate planning can give you peace of mind and confidence that the people you love will be supported.

FindLaw’s directory of estate planning attorneys can get you started. Because state law is relevant, your attorney should be licensed in your state. Enter your city or ZIP code for a list of qualified legal professionals near you, including ratings and contact information. Then, reach out with your questions.

Estate Planning Law: Terms To Know

Knowing key terms can help you understand estate planning law. These terms include:

• Advance Directive: A document (i.e., living will or durable power of attorney) in which a person expresses their wishes regarding medical treatment in the event of incapacitation
• Executor of an Estate: The person who ensures the disposition of the estate occurs according to the deceased’s wishes
• Federal Estate Taxes: Taxes the IRS levies on certain estates for property transfers after death
• Inheritance: Inheritance is the real or personal property acquired under the laws of intestacy or sometimes by a will.
• Intestate: Without a legally valid will
• Personal Administrator: The person charged with disposing of a deceased’s estate if that person died without a will
• Probate: Probate is the legal process of transferring property upon a person’s death, particularly in the absence of a will.
• Real Property: Real property consists of land, buildings, crops, or other resources still attached to or within the land or improvements, or fixtures permanently attached to the land or a structure on it.
• Testator: The legal term for the person who wrote a will

See FindLaw’s Estate Planning Terminology and Fundamentals for more estate planning and administration terms.

Estate Planning Law: Related Practice Areas

Like many other legal specialties, estate planning law overlaps various practice areas. These practice areas include the following:

• Probate Law: Probate law governs the court‑supervised process of validating a will, settling debts, and distributing a decedent’s assets.
• Tax Law: Some estates are taxed heavily. A thorough understanding of tax law is essential to the estate planning process.
• Elder Law: Estate planning and administration must change as testators age. An elder law attorney knows how changing life circumstances affect estate plans.
• Real Estate: One of the major assets decedents leave behind is their real estate. Real estate attorneys may be necessary to make the transition go as smoothly as possible.
• Family Law: Estate administration attorneys must review past marriage certificates, divorce decrees, and support orders to understand which family members should inherit.

Learning about related practice areas can give you a complete picture of the estate planning process. An estate planning attorney can also guide you through the process.