When I refer to a “probate case”, I am talking about any situation where someone has died and someone else is now in my office.
In these situations there are always 3 main areas I ask questions about. I can’t think of a situation where these questions would not be asked. I always ask them because it helps me figure out what I may be asked to do, it helps me analyze possible scenarios, and it helps me decide whether (and on what basis) I would consider getting involved. Here are the 3 questions….
- IS THERE A WILL?
- IS THE SITUATION FRIENDLY OR UNFRIENDLY?
- AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)?
IS THERE A WILL? I know, sometimes it’s not so simple. Maybe we only have a copy? Maybe the Will is questionable? Maybe the Will was revoked? Whatever the story is, and the story will dictate the actions needed, I want to know if there are issues about a possible Will. Sometimes the answer is a clear “there’s no Will”. So be it, and then we know we are looking at an Administration under the laws of intestacy, and we go from there. But at least we have square one covered…
IS THE SITUATION FRIENDLY OR UNFRIENDLY? Contrary to what many people think, very often these situations are friendly. That being said, even friendly situations require identifying and locating all the people whose written consent may be required. This is true whether there is a Will or not. Anyone who has a possible legal interest must be accounted for in the Court filings, or a fiduciary cannot be appointed. So, in a friendly situation we would have the interested (friendly) parties sign the right papers (usually a “Waiver & Consent”) to whatever is going on. If some interested party is unfriendly, I want to know what the problem is and what the issues are. We can proceed even if there is unfriendliness, but we will have to put those folks on notice (usually with a Citation), knowing that they may show up in Court and have something to say. So be it, we can prepare accordingly…
AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)? – Very often the person who contacts me is not the fiduciary. In fact, they are contacting me because they have questions about what the fiduciary is doing? In those cases I ask first about #1 and #2. I ask about whether there is a Will because if the person is not the fiduciary I want to know what their interest is….a fixed dollar bequest? a percentage? an intestate share? I ask about #2 because while you might assume that if the person has to ask it must be unfriendly, that is not always the case. Sometimes they haven’t actually asked the fiduciary (m)any questions, and while the fiduciary should have volunteered the info, a clear and polite request from an attorney will get the answer. Also, sometimes it’s only a little unfriendly and things can be resolved with some level of inquiry. And of course, sometimes it’s VERY unfriendly and the fiduciary is a dastardly sociopath. In those cases you have to be prepared for ANYTHING. I’ve been there, and getting involved in these situations is a choice. Having been there, it’s not a choice I make every time. I often choose to opt out of these and try to refer the person to an attorney who might want to say yes.
Anyway – that’s how I approach every new case. Three main issues, once we talk about all three I’ll have a good idea of what the options and scenarios are.
BTW – I would NEVER quote a fee, flat fee, hourly fee, percentage, or any other fee, without discussing the 3 issues. It would not be fair to a potential client and it would not be fair to ME (something I DO consider).
Comments and questions are always welcome!!!