What’s the Difference Between a Trust Lawyer and a Trust Litigator?
One common question we hear is, “What’s the difference between a trust lawyer and a trust litigator?” A trust lawyer and a trust litigator both work within the California Probate Code, but in different ways. Here’s an overview of the difference between a trust lawyer and a trust litigator.
What is a Trust Lawyer?
A trust lawyer may also be called an estate planning lawyer or a probate lawyer. A trust lawyer is a specialized kind of attorney who focuses their practice on estate planning and helps their clients create estate planning documents such as:
- Different types of trusts (such as revocable living trusts, charitable remainder trusts, or special needs trusts)
- Advance Healthcare Directives
- Durable Powers of Attorney
- Deeds transferring assets of real property into trusts
- And other related documents
How Does a Trust Lawyer Help Post-Death?
After a client passes away, most trust lawyers also help to administer the decedent’s estate.
If the decedent had created a trust, the attorney works with their successor trustee to administer the trust and distribute the assets.
If the person who died created only a will, the attorney would work with the executor to probate the estate in the California Probate Court.
Sometimes a person dies without creating any estate plan at all. In cases like this, a trust lawyer can help their loved ones probate the estate, including appointing a personal representative to do all the work involved in a probate proceeding.
What Fees Does a Trust Lawyer Charge?
When it comes to fees, most trust lawyers charge a flat fee for creating estate planning documents. A flat-fee charge means the cost stays the same, regardless of how much time they spend drafting the document.
For a trust administration, many trust lawyers request a retainer and charge on an hourly basis. Thus, the cost will vary depending on the complexity of the administration and the amount of work to be done.
For probate matters, the attorney’s fees are set by California statute. Probate fees are a percentage of the estate value, paid at the end of the probate proceeding. No matter which trust lawyer you hire to handle your probate matter, the cost will be the same.
Do Most Trust Lawyers Handle Litigation?
If a dispute arises in a trust or estate administration, most general trust attorneys do not have the litigation experience necessary to handle a litigated matter. If a dispute arose, most trust attorneys would refer the matter to a trust litigator.
What is a Trust Litigator?
A trust litigator, also known as a trust litigation attorney, is a lawyer who specializes in trust disputes. A trust litigation lawyer may serve defendants – trustees who are being sued by beneficiaries. Or they may represent plaintiffs – beneficiaries who are bringing a legal action against the trustee.
Some of the typical kinds of matters handled by a trust litigator include:
- Contesting a trust, will, or conservatorship, often on behalf of family members who claim that someone exerted undue influence over their loved one
- Suing a trustee for breach of fiduciary duty
- Petitioning the court to compel a trustee to take action (for example, to distribute assets to the beneficiaries, to provide an accounting of their actions to the beneficiary, or to pay back misappropriated trust funds)
- Petitioning the court to replace a bad trustee
- Defending a trustee against accusations from beneficiaries
Trust litigators participate in discovery, mediation, court hearings, court trials, and sometimes appeals.
What Fees Does a Trust Litigator Charge?
When it comes to fees, most trust litigators request a retainer and charge on an hourly basis. Thus, the cost will vary depending on the time they spend working on the case. Some trust litigators will take clients on a contingency basis, meaning they only get paid if they achieve a successful outcome for their client.
Trust litigation can last quite a long time and become quite expensive. Clients often opt to utilize all of the members of the litigation team, including support staff and paralegals, in order to keep costs manageable.
Trustees seeking legal representation can usually pay for legal defense using trust assets, while beneficiaries must pay for their legal fees out of pocket. However, in a court trial, if one party can prove that misconduct has occurred, the judge may require one party to pay for the other’s legal fees.
At the Law Offices of Daniel A. Hunt, we offer both trust attorneys and trust litigators for our clients, depending on their needs. If you have any other questions about the difference between a trust lawyer and a trust litigator, feel free to contact our office.
Law Offices of Daniel A. Hunt
The Law Offices of Daniel A. Hunt is a California law firm specializing in Estate Planning; Trust Administration & Litigation; Probate; and Conservatorships. We've helped over 10,000 clients find peace of mind. We serve clients throughout the greater Sacramento region and the state of California.