By: Roger J. Buffington, Esq.
Buffington Law Firm is a litigation firm, and our largest practice area is trust litigation. We often get calls from the public in which it is apparent that the prospective client is unclear as to the difference between an estate planning law firm, and an actual trust litigation firm. In this brief Blog article we will explain and discuss the difference.
Estate Planning. An estate planning attorney or law firm typically is in the business of designing a client’s estate plan and drafting the documents to put the plan into effect. Perhaps most relevantly, the estate planning attorney will draft the actual revocable living trust which is usually the centerpiece of a well-crafted estate plan. He or she will also usually draft the clients’ wills, durable powers of attorney, and often an advanced health care directive. Not uncommonly, once the trustors (the trustmakers) pass away, it is not unusual for the estate planning attorney to assist the beneficiaries and the successor-trustee in administering the trust by providing the successor-trustee with legal advice as to how to implement the trust provisions and perhaps wind up and terminate the trust. Of course, there is no legal obligation that a successor-trustee retain the same law firm that drafted the estate plan to administer it after the deaths of the trustors, but this does often occur. Many successor-trustees do not have a relationship with any other law firm, and it is simply natural and convenient that he or she gravitates to the law firm that drafted the estate plan.
Trust Litigation. The practice of trust litigation is a different area of law from estate planning and requires a significantly different skill set. A trust and estate litigation firm is engaged in trial advocacy. This is the type of firm that you contact if you seek to challenge a trust, bring an action against a trustee or successor-trustee, or defend against these types of action. Most trust litigation firms are also familiar with, and regularly engage in, elder law litigation such as claims involving financial elder abuse. A pure trust litigation firm may likely not engage in estate planning, i.e. they do not draft estate plans or estate documents. Instead, these firms are who you turn to if you have a dispute involving such.
While some lawyers are engaged in both estate planning and trust and estate litigation, it is more common that practitioners focus on one or the other. It is worth noting that generally an estate planning attorney cannot usually act as defense counsel involving an estate plan that he or she was involved in drafting or creating. This is because it is almost always the case that the estate planning attorney is a percipient witness as to some or all of the factual issues in the case. Not uncommonly, the estate planning attorney can testify competently as to the trustors’ intentions, their apparent mental capacity, and other highly relevant topics. It is a general rule that an attorney cannot be an advocate in an action in which he or she is also a witness.
Buffington Law Firm is a pure litigation firm and does not create or draft estate plans. Our Firm has engaged in estate litigation since 1998 and has successfully represented clients in many mediations and trials involving trust, estate, and financial elder abuse disputes. If you are involved in such a case, we invite you to contact us for a free legal consultation. All consultations are completely confidential and privileged and are with an actual experienced trust litigation attorney. And there is never any obligation. Call us today!