When I refer to a “probate case”, I’m talking about any situation where someone has died and now someone else has contacted me as a lawyer.
In these situations there are 3 main areas I ask questions about. I can’t think of a situation where these questions would not be asked. Asking these questions figure out what may need to be done, helps us analyze possible scenarios, and helps decide whether (and on what basis) we would consider getting involved. Here are the 3 questions….
- IS THERE A WILL?
- IS THE SITUATION FRIENDLY OR UNFRIENDLY? (What is the nature of the assets?)
- 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 there was a later Will? Maybe we can’t locate the Will? There are MANY possible Will scenarios. Whatever the story is, I want to know pertinent details about any possible Will. Sometimes the answer is a clear “there’s no Will”. So be it, and we now know we are doing an Administration under the laws of intestacy. The game plan can proceed from there.
IS THE SITUATION FRIENDLY OR UNFRIENDLY? and related question: What is the nature of the assets? 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. This person is generally referred to as a “fiduciary”, with the official title of “Executor” (in a Will situation) or “Administrator” in a no-Will situation). In a friendly situation we would have the legally 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.
Related to this theme is finding out the nature of the assets. This is more than just amounts, as important is determining early on whether there are listed beneficiaries on any assets. This can be true with bank and brokerage accounts and also with real estate holdings. Very often there are POD beneficiaries on accounts and various ways people can hold title to real estate. It is extremely helpful to know this early. Real estate holdings can often be verified online and is worth looking at.
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 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, something else may be 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 getting involved is sometimes a bad choice. 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!!!