Does Family Law Include Probate?

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Does Family Law Include Probate?

Family law defines what one partner owes to the other in the event the relationship ends. Probate laws, conversely, determine who owns what, either in regard to property, debt, or power, in case someone dies.

“Another thing that sometimes comes up is whether there is an overlap between the law of the family and estate law. The answer is that there is an overlap between family and estate law. However, they do different things and offer different answers,” explains Washington family lawyer David Lutz, who is the founder of Lutz Law Offices, P.S.

This guide will clarify the confusion surrounding the two professions and where their career paths cross, helping you determine which type of attorney you might need.

Family Law Overview

Family law deals with situations where things are not going well in the family, such as divorce and who gets what. The judges do not just decide based on what is right and wrong; they also seek to ensure that everyone is treated fairly, especially children.

It covers all the nitty-gritty, including property distribution and the issuance of protection orders when a person is in danger. However, as soon as a person dies, the relevance of family law subsides, and that’s where probate and estate law come into the picture.

Probate Law Overview

Probate laws cover what to do with a person’s stuff and debts after he/she dies. The court is called in to verify whether the wishes expressed in the will are valid, appoint a manager, and ensure that everything is distributed to the right people. 

Probate also establishes a system to ensure that creditors receive information, settle all claims, and pay taxes. Of course, sometimes things like bank accounts and life insurance policies have named beneficiaries, thereby avoiding the probate process entirely. But when people begin arguing about whether the will is valid and whether anyone was pressured, things can quickly head to court.

Where Family Law and Probate Intersect

Family law and probate law remain in separate lanes. However, there are instances when these laws intersect, such as in family disputes over who inherits what upon death or when death leads to role-shuffling within the family.

Divorce, for example, changes how probate proceedings unfold in court. In many states, getting divorced means your ex no longer gets what you left them in your will, or any job like executor, unless you have made it crystal clear you want things to stay the same. 

Spousal rights really mix things up further, depending on where you live, especially in regard to elective share rights or community property laws. There is even debate about whether an ex-spouse should receive any insurance proceeds or retirement funds.

Guardianship is a gray area. When a parent dies or is unable to care for their own children, it is up to the probate courts to decide who manages the estate of the children, and up to the family courts to determine custody arrangements.

Why the Difference Matters

Understanding the difference is crucial because it determines what happens, how long it takes, and how much a case costs. If you are going through a divorce or a custody fight, you will want a family lawyer. If you are handling someone’s estate or will, you’ll want someone familiar with probate law. Some lawyers do both, and it is fine if your case is not very complicated. But when a lot is at stake, it is more intelligent to have a specialist in both areas.

When choosing an attorney, be sure they explain exactly how they will charge and provide a clear plan for handling matters in the first three months. 

Ask them to provide you with samples of parenting plans and financial affidavits they have actually prepared. Check to see that they get along with mediators and custody evaluators. Most importantly, always check with the bar. The last thing you want to do is choose the wrong attorney for the job.