How to choose a probate litigator
Why estate litigation is a different practice from estate planning, what to ask in a first consultation, and how to read the answer on fees.
The lawyer who writes wills and the lawyer who fights about them are frequently not the same person, and the distinction matters more than most people realise when they start looking.
Estate planning is transactional and drafting-led. Contested estates are litigation: discovery, depositions, expert evidence, motions and, occasionally, trial. Both are estate law, and the skills barely overlap.
What to look for
- Litigation experience specifically in contested estates and trusts, rather than estate planning with occasional disputes.
- Experience in the court where your matter would be heard, since probate practice is highly local.
- Whether they act for claimants, for estates, or both. Some firms specialise in one side.
- Membership of practice-segmented bodies. The American College of Trust and Estate Counsel elects Fellows by peer nomination and publishes a directory, and several state bars certify specialists in estate, trust and probate law and publish those rolls.
- Whether they will discuss the economics of the claim candidly at the first meeting rather than only its merits.
Questions for a first consultation
- What is the deadline that applies in my situation, and when did it start running?
- Do I have standing to bring this claim at all?
- Which grounds, if any, do the facts I have described support?
- What would you expect this to cost through to settlement, and through to trial?
- Do you offer a contingency arrangement here, and if not, why not?
- Is there a no-contest clause in the document, and what does it mean for me?
- What should I be doing right now to preserve evidence?
How to read the answer on contingency
If a lawyer declines a contingency arrangement, that is worth understanding rather than shopping around to avoid. Contingency is offered selectively, weighing the size of the potential recovery against the strength of the facts, so a refusal often reflects a view about one or both.
Ask which of the two is driving it. A case declined because the amount at stake is too small is a very different situation from one declined because the facts are weak, and only one of those is worth funding hourly.
Source: Policygenius, How Much Does It Cost to Contest a Will
Move quickly on the consultation
Contest windows are short and state-specific, and several start running from a notice rather than from the death. The first consultation is also the point at which someone can tell you what your actual deadline is.
That alone is a reason not to spend weeks comparing firms. Establishing the deadline early preserves options that are lost by waiting.