"My mom passed and I think we need probate." Intake hears that every day. Sometimes it's right. Sometimes most of the estate is in a trust, and what the family needs is trust administration. Often it's a mix of both.
The difference matters for intake because it affects which attorney takes the matter, how long the consult should be, which documents to ask for and how the firm may quote the work. Intake doesn't decide which process applies. But staff who understand the difference ask better questions.
The plain-English difference
Probate is the court-supervised process for settling the estate of someone who died. A court accepts the will if there is one, appoints a personal representative (often called an executor when there's a will and an administrator when there isn't, though terms vary by state) and oversees how debts get paid and property gets transferred. If there's no will, state law decides who inherits.
Trust administration is the process of managing and distributing property held in a trust after the person who created it dies. The successor trustee named in the trust handles it, following the trust's terms. It usually happens without a court overseeing each step. Trustees still have legal duties, many states require notice to beneficiaries, and a court can get involved if there's a dispute.
The short version for intake staff:
- Property in the person's name alone, with no beneficiary or co-owner, often goes through probate.
- Property that was transferred into a trust is handled by the trustee under the trust.
- Some property passes outside both, like accounts with a named beneficiary or property owned jointly with survivorship rights.
Plenty of estates involve more than one of these. Someone can have a trust and still leave some things in their own name, which may need probate. Many trust-based plans include a will that sends leftover property into the trust, and if there's property for that will to cover, it may need to go through probate too.
One more point. Probate procedure varies a lot by state. Some states have simplified or informal procedures, and many have options for small estates that skip full probate. Your attorneys know which apply where you practice. Intake shouldn't guess.
Why the distinction matters for qualification
| | Probate | Trust administration | |---|---|---| | Who's usually in charge | Court-appointed personal representative | Successor trustee named in the trust | | Court involvement | Yes, and the extent varies by state | Usually limited unless there's a dispute | | Key document | The will, or no will at all | The trust, plus any will that feeds into it | | What the caller says | "There's a will" or "there's no will" | "Mom had a trust" or "a living trust" |
Firms often staff and price these differently. Some attorneys handle one and not the other. Getting it roughly right at intake means the consult starts in the right place.
The questions that tell them apart
Ask these on every probate-type call:
- "Did your mom have a will?"
- "Did she have a trust? Sometimes it's called a living trust or revocable trust."
- "Do you have a copy of either one? Do you know where the originals are?"
- "Who's named to be in charge, the executor in the will or the trustee in the trust?"
- "Was her house in the trust's name, or in her own name? If you're not sure, that's fine."
- "Did her bank and investment accounts have a named beneficiary, or were they in the trust?"
- "Has anything been filed with a court yet?"
Many callers won't know the answers to 5 and 6. That's normal. Ask them to bring the deed, recent account statements and the trust document to the consult, and let the attorney work it out.
Script lines that keep intake out of advice
Callers will ask, and staff will be tempted to answer. Have these ready.
"She had a trust, so we don't need probate, right?"
"Sometimes that's how it works, but it depends on what was in the trust and your state's rules. The attorney will review the documents with you."
"There's no will. Does that mean the state takes everything?"
"That's a common worry. When there's no will, state law sets out who inherits. The attorney can explain how it works for your family."
"Can the trustee just start handing things out?"
"That's a good question for the attorney. Trustees have specific duties, and they'll walk you through them."
"Is probate going to take years?"
"It depends on the estate and the state. The attorney can give you a better sense once they see the details."
Routing the lead
Use the answers to route the call:
- A will, no trust, assets in the person's name. Likely probate. Book with your probate attorney.
- A trust, and assets appear to be in it. Likely trust administration. Book with whoever handles trust work.
- Both, or unclear. Book a consult with enough time to review documents. This is the most common category.
- No will and no trust. Possibly a probate matter without a will, or a small estate procedure. Note the asset picture.
- A family disagreement or a challenge to the will or trust. Flag it as possible litigation. That's often a different attorney and fee arrangement.
Don't tell the caller which bucket they're in. Just book the right consult.
Documents to request
Ask the caller to bring:
- The will and any trust documents, including amendments.
- The death certificate, if they have it.
- Recent statements for bank, investment and retirement accounts.
- Deeds or property tax bills for any real estate.
- Any court papers or letters already received.
Partial is fine. Tell them to come either way.
How this fits the rest of probate intake
This is one slice of the probate call. The full set of questions is in intake questions for probate callers. If there's a deadline involved, see triaging urgent probate deadlines at intake.
Where IntakeGenius fits
When we set up the IntakeGenius AI voice agent for a probate practice, we build in the will-or-trust questions and the routing your attorneys choose. It gathers the facts, books the right consult and leaves every "do we need probate" question to your lawyers. Curious how that would sound on your line? It's a 15-minute call, no slides.