When I refer to a “probate case”, I am talking about any situation where someone has died and somebody is talking to me about it.
There are 3 main areas I ask questions about. Asking these questions helps me figure out what needs to be done, helps me analyze possible scenarios, and 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? Sometimes it’s not so simple. Maybe we only have a copy? Maybe the Will is questionable? Maybe the Will was revoked? Maybe we can’t locate the Will? Whatever the story is, I want to know any issues about a possible Will. For a Will to be effective, it has to be probated, which means it must be submitted to the Court with appropriate supporting documents. The Court’s approval of your Probate Petition means the will is valid and the Executor receives a certificate called “Letters Testamentary”, which is universally accepted as authority to act on behalf of a deceased person’s estate.
Sometimes the answer is a clear: “there’s no Will”. So be it, and we know we are doing an Administration Proceedings under the laws of intestacy. 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 an estate representative cannot be appointed.
In friendly situations have the interested (friendly) parties sign the right papers (usually a “Waiver & Consent”) for whatever is going on. If some interested party is unfriendly, I want to know what the problem is. We can proceed even if there is unfriendliness, but we will have to put those folks on notice (usually with a Citation), knowing 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)? – People who are named in Wills as Executors, and people who have a right to petition to be Administrators (also called “fiduciaries”) usually hire attorneys to represent them. The goal of an initial meeting is usually to identify what needs to be done, and making a plan for doinng it.
Sometimes people contact me because they have questions about what the fiduciary is (or isn’t) doing. In those cases I ask first about #1 and #2. I ask about the Will because I want to know what their interest is….a fixed dollar bequest? a percentage? an intestate share? I ask about #2 because rather than assume things are very unfriendly, I want to know the dynamics of what’s going on.. Sometimes nobody has actually asked the fiduciary (m)any questions. While the fiduciary should have volunteered the info, a clear and polite request from an attorney will often get a useful answer. 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 in hindsight, getting involved was a bad choice. It’s a choice I’ve learned to make VERY carefully, and if I sense insanity on the horizon, I say NO and never regret it.
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 thoroughly 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!!!