Because both state and federal governments impose taxes on either the estate or the inheritance, a major focus of wills and estates practice involves minimizing the tax burden. Since little can be done after the testator has died, it is important to take steps before death to accomplish this objective.
The process of devising a testamentary scheme that maximises the size of the inheritable estate distributed to their heirs is called estate planning. Lawyers who practice in this area must be familiar with both state and federal estate and income taxation.
A related area is the law of trusts and trust administration. Trusts are instruments that transfer the owner’s use and enjoyment of property to a beneficiary while transferring legal title to a trustee charged with administering the property in the beneficiary’s interest.
At some point in the future, the trust transfers the entire interest in the property to an ultimate beneficiary. Trusts may operate either during the life or after the death of their creator. Whereas most trusts are drafted by lawyers in private practice, a large part of the trust administration business is handled by banks.
It is not uncommon for lawyers to work in a bank trust department in the area of trust administration.
When the testator dies, the lawyer is often invoked in taking the will through probate. This may involve admitting the will to probate, securing the appointment of an executor, settling disputes among the heirs, assisting in the distribution of assets, and closing the estate when all assets have been distributed.
Probate matters can be so simple that they require virtually no lawyer assistance at all or so complex that they require years of litigation.
Although there is no guarantee that the heirs will bring the testator’s will for probate to the same lawyer who prepared it, most lawyers hope that this will happen, since the financial rewards of estate administration are usually much greater than those for will preparation.
Housing law has emerged as a significant area of practice, especially in areas where large numbers of people rent their homes. The English common law contained rules governing the rights and responsibilities of both landlords and tenants, but these laws were often tipped heavily in favour of the landlords.
They were also created for more simple agrarian times. Since the 1960s, tenants’ rights advocates in many jurisdictions have been able to secure legislation protecting tenants’ rights advocates in many jurisdictions have been able to secure legislation protecting tenants’ interests from abuses by landlords.
Despite these laws, millions of people still live in substandard housing, and many tenants do not understand their sights. A significant number of housing cases involve low-income working-class people or students.
In some areas, many rental units have been converted to condominiums (where individuals own their unit) or cooperatives (where each person owns a share of the entire building). This affects the practice of law in two ways.
First, it has given rise to an entirely new body of low involving the rights of co-op and condo owners and their boards of directors, management companies, and developers. Second, as apartment buildings are converted to individual ownership, the availability of affordable housing dries up.
This problem is particularly acute in New York City and other older cities with a large number of apartment buildings. But it can also be a problem in fast-growing areas where the influx of new population outstrips the availability of housing.
A final practice area that may be classified under property law is leasing. Although the term leasing can be used in the context of real property (for example, Farmer Jones leases a field from Preacher Bob to grow corn), the most dramatic changes in leasing practices have involved personal property from cars to photocopiers to heavy industrial equipment to furniture.
Businesses, as well as individuals, frequently elect to use the property for a limited period, paying the owner for its use, rather than purchasing the property outright. The producers of some products find it advantageous to lease rather than sell those products.
For instance, the back of computer software packages often discloses that the software is being leased or licensed, no-sold, and carrier certain obligations. Leasing law representations a growing practice area that will continue to evolve in the coming decade.