When we "probate" a Will, we are having the Court recognize it as official and proper. The Court then grants "Letters Testamentary" to the Executor, so they have authority to act.
When starting out with a probate proceeding, there are certain things to determine right off the bat. These are important because they determines how simple or easy your proceeding is going to be.
Here are 3 important ones:
1. Does the Executor have the ORIGINAL Will. This is very important, and quite frequently clients come in and all they have is a copy. Copies can be probated, but it is much harder. When the client doesn't have the original, serious efforts must be made to locate the original. Some of the places I suggest the clients look are:
- The decedent's papers and records. They usually say they looked. I suggest they look again.
- Safe deposit box. If the decedent has one, very often the Will is in there. Getting it out after the person has died takes some legal work.
- With the drafting attorney. I don't generally hold original Wills, but many attorneys do. I suppose it increases their chances of getting the probate. Anyway, sometimes we have to extract the Will from the drafting attorneys, and sometimes it's a royal pain. What if they died? Moved? Lost it?
- On file with the Court. Many lawyers don't know a Will can be filed while a person is alive. I've done this a few times, usually when I am concerned that an angry relative might get access to the decedent's Will and destroy it.
- In the possession of another family member.
2. Did the witnesses execute a "witness affidavit"? A will does not have to be notarized. The legal requirement is that it be "signed in front of two witnesses". However, best practice for will execution is to have the Will signed in front of two witnesses and then have the witnesses sign an Affidavit, attesting that everything was done that needed to be done. When this Affidavit is with the Will, you don't have to locate and contact the witnesses. When the Will doesn't have the witness affidavit, and you want to probate, you have to find the witnesses and get them to sign an Affidavit. What if their signature is illegible? What if they died? Moved? Don't remember anything? I've encountered all of these. Generally the problems can be solved, but it's much more work!
3. Can we identify and locate the "distributees". These are the people who would inherit under intestacy. In a probate proceeding you have to get jurisdiction over them, as they are the only people with standing to contest the Will. It's difficult when you (or the client) don't know who they are and/or where they are. Also, sometimes these people present other problems.....dead, missing, mentally incompetent, incarcerated, questionable paternity, etc. A drafting attorney should obtain this information, and press for it even if the Testator doesn't want to give it. This saves a ton of trouble and expense later. When analyzing a new probate, the first and most important issue is always "what will be involved in getting jurisdiction?"
Sometimes potential probate clients ask "How much will it cost to probate a Will?" I would not offer a quote without at least inquiring about the these important "little things".
Saturday, November 29, 2014
Sunday, November 23, 2014
Many lawyers deal with Surrogates Court only peripherally. Questions about estates and Surrogates Court come up often enough that it is worth knowing the basics. Here are 10 things worth knowing, even if you never set foot in Surrogates Court.
- Probate (Wills and will contest issues)
- Administration (Appointment of fiduciary when there is no Will)
- Accounting (Issues concerning distribution of the Estate, a/k/a "fighting over the money")
- Guardianship (protection of minors, personally and financially)
- Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)
2. In probate cases there is a presumption that an attorney drawn and supervised will was validly executed. In a contest the burden of proof is on an objectant claiming improper execution. A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution. Sometimes this is a BIG hurdle.
3. To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest. VERY often proposed fiduciaries are not able to qualify for a bond.
4. If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain "preliminary letters". It costs some money and requires a bond, but in the end it can save the Estate a lot of money.
5. Contrary to what many clients think, death does not absolve an Estate from creditor's claims. A fiduciary must address claims they know about or had reason to know about. There are a lot of rules and caselaw on this, but the bottom line is fiduciaries do better when they address claims pro-actively. There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.
6. When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer. The contents are inventoried, and if a Will is found it is delivered to the Court. If a box is being opened after a fiduciary is appointed, the bank officer should not observing. The fiduciary has a right to open the box on their own.
7. Nothing substantive can happen on a Surrogates Court proceeding until "jurisdiction is complete". This occurs when all the interested parties have either signed a Waiver or been served. In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice. This is true even if they are not named in the Will.
8. Whenever an interested party can't speak for themselves (some examples are minors, disabled people, missing people, or "unknowns") the Surrogate appoints a "Guardian-ad-Litem" for them. The Court fixes a fee for the Guardian after they file a report, and they are paid out of the Estate. I've heard cynics question this, but in my view, this procedure is absolutely essential. I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.
9. Estates worth under $30,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA. These are designed to be handled without an attorney. Most clients can handle these on their own. Such an appointment enables a person to collect up to $30,000. However, they would not be able to sign a deed with this type of appointment.
10. First cousins can inherit under intestacy, but generally they can't become fiduciaries. In "cousin cases", the Public Administrator is the fiduciary. These Estates ultimately become "kinship cases". This is a fascinating specialty within Surrogates Court practice.
Sometimes Surrogates Court seems like it's own little world. It has many unique rules and procedures. All of these are designed to ensure fairness and prevent premature or improper distributions. Once one gets the hang of it, it starts to make sense. Most of the time, anyway.
Sunday, November 9, 2014
Law "jobs" may be scarce, but for the entrepreneurial, there is plenty of law business out there. The skill that separates the successes from the strugglers, is recognizing and getting GOOD business, while simultaneously knowing and avoiding BAD business. Growing a healthy law practice starts with hearing clients' stories, and making business decisions on whether they and their story are profitable business.
Bad business is bad because....
1. The time spent on bad business takes away from two important things: good business and personal time. You can make up for bad business with good business, but only if you expand into personal time. Very unhealthy.
2. Bad business saps your energy. Squeaky wheels get your grease, and that is the essence of bad business. Squeaking clients, making a noise you can’t escape and have to attend to. So you grease it, and talk to it, and e-mail and meet with it. You travel to court for it and with it. Still, it squeaks. You grease it enough, it starts to quiet down and move along. Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason bad business is so bad.
3. You lost money. All that squeaking, all that time, your time, and maybe you made $10 an hour. It happens, and if you don’t pay attention, it can happen a lot. And, sometimes bad business gets quiet and slinks away without paying, or makes you chase the fees.
4. Bad business produces bad karma. When you are a solo lawyer, your clients and their cases are your life (We'd all like to deny this, but it's true). When you have cases, you always have a certain “mix”. I realized this one day while talking to another solo. We were having a “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today"? Without hesitating I answered “Bad mix right now”. He knew just what I meant and said, “Yeah, that’s a bad thing”. Since then, we start our calls with “How’s the mix today?”
5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, consider where that leads.
Here is my short list of bad kinds of cases, and the reasons they are bad:
a. Residential real estate closings: Very often these have low flat fees with no control over your time; plus clients who are generally not business people, suddenly under intense pressure.
b. Accident cases with minor injuries: You end up working your tail off, spending your own money, and the insurance company fights you. Now, it is true that every so often you hit a home run with an accident case. But sometimes there are no home runs in the mix, just squeaking. I'd also add that, relative to time spent, the most profitable cases in the history of my practice were cases I referred out (and ethically participated in the fees)!
c. Landlord-tenant cases: Unless you do a lot of them, so it would make sense to hang around in Housing Court all day. Hanging around in Housing Court on one case is bad business.
d. Debt collection cases: a percentage of nothing is nothing. Never forget this. Yeah, you can collect once in awhile, but on all the ones where you get nothing, you never get back your time.
e. Purchase and sale of a small business: Unless you are really tough, and a super smart businessperson, and ruthless, and heartless. As a young attorney, you find out right away, that compared to other small business owners, you are a wimp. A nothing. You may be able to do the papers for the deal, but you don’t even know what the deals are really about. I’m not talking about corporate mergers here. I’m talking about representing someone buying a coffee shop. These transactions are WAY more complicated and difficult than you could imagine.
f. Any kind of case you don't know how to do really well, and that you don't have a lot of.
There are rationales and rationalizations for taking bad business. I have heard (and acted upon) all of them:
- I'm building a client base.
- Small fees are better than no fees.
- I'm gaining experience and contacts.
- I'm not busy with other things right now.
If you think these thoughts, and it's natural to do so, at some point you will recognize the many flaws. Hopefully this happens sooner rather than later.
It's easy to market for, and get, tons of bad business. Of course, if you get enough bad business, bad becomes good, you become the specialist, and you are the bad business go-to person. This can and does happen, and on many levels can be an excellent result of learning the lessons of bad business.
Bottom line: bad is bad, but bad can become good. If you don't know bad when you are in it, bad is VERY bad. If you can figure out what good is right away, skip all this bad stuff, and go for good from the git-go.
Comments are welcome!
Sunday, November 2, 2014
In real estate they say "location location location". Of course, it's also true for the venue of our cases and clients. When you make the decision to take a matter or not, you must consider the venue. Not just the court where a litigated matter would be, but the "venue" of clients and other players.
Where I am in Queens County, New York, there are 8 counties in some proximity to my office: The 5 boros of NYC, plus Nassau, Suffolk & Westchester Counties). Outside of Queens, all these present SOME level of inconvenience for me. Actually, I've had cases in Rockland and Putnam Counties too, which will now go into the "lesson learned" category.
When a new matter is being discussed, I've learned to consider WHERE will the action take place. If there is possible litigation, we all think of this from the outset.....as plaintiff I must think "where will I venue the case?", as a potential defendant, I consider "Where will plaintiff venue it, and why?"
You should consider that non-litigated matters have a "venue" too. Will there be meetings with clients and counsel? WHERE will they be? Here's a reality, if I have to attend meetings in Brooklyn or Manhattan during the day, add two hours (Staten Island or Suffolk County, add three hours). If it's not the kind of case or client where you KNOW you will be truly compensated for your time (and be HONEST with yourself), factor this in when deciding whether to get involved. Is it the kind of client who will need to be in your office more than once during the matter? If they have to commute an hour each time, how long will it be until they resent that? If you have to go to them, will they pay for your time? If they don't, how will that be for YOU?
You MIGHT be better off referring such matters to someone local. At the very least it merits consideration. This is especially true with clients who can barely afford proper legal services to begin with. The travel and inconvenience of this type of situation can turn brutal pretty quickly. You are generally better off gaining the value of making a well considered referral.
On litigated matters, will your adversary have "home court advantage"? Don't overlook this, and it's not just because they know the Judges and Clerks and customs of the home court. A simple status conference with the court, where your adversary is there anyway because ALL his cases are there, is a big waste for you.
How much more confident do you feel when you are in YOUR home court (and your adversary is traveling)? I know that the case is still the case, and I think they generally turn out the way they should, BUT we are talking about BUSINESS, and profits, and convenience, and lifestyle. I have referred cases to "local counsel", even if its in Manhattan or Brooklyn or Nassau counties (all contiguous to Queens), for business reasons. I also have cases referred TO me because of my Queens presence. There are sound business reasons for this.
Bottom line: VENUE is a bottom line issue.
Comments are welcome....
Comments are welcome....
Wednesday, October 22, 2014
How many opportunities do we have to answer the question "What do you do?"
The answer can say a lot to the questioner, in both content and tone, but it should also say a lot to YOU.
Do you notice how you answer the question?
Do you use vague generalities? "I am in general practice.....I do a lot of different things.....I work for a small firm......".
Do you give a self-deprecating answer? How would you view someone who defined themselves as doing something they hated?
Are you enthusiastic? Could you be? About something that you do?
Here are some basic suggestions:
1. OBSERVE how you answer that question.
2. THINK about what it indicates: (a) to the questioner, and (b) to yourself.
3. Experiment with some different ways to answer, first by thinking of some, and then trying them out when asked (btw, you will be amazed how many opportunities you have to answer the question). Then, follow the above.....observe your response, and THINK about what it indicates to the hearer and to yourself.
4. Keep refining how you define, it will move you in the right direction.
You will also notice that specificity, and saying that you focus on SOMETHING(s) improves your approach to practice, and results in new, QUALITY business........
Sunday, October 5, 2014
Law practice, like any small business, forces you to think about where you've been, where you are, and where you're going. I do this more as I get older, realizing there is not an infinite time frame to get it right.
Today I was thinking about what I want to do, but it's so hard to stay focused on THAT. My learned thought patterns kept taking me back, thinking about what I've done. After a bit of that, it was a look at what I'm doing now. Much of that are things I really don't want to do any more. I have some ideas, and have had them for quite some time. Have you ever felt that way? How can the bigger ideas get going?
I DID figure out that I want to be working on things that excite me, BIG projects and bold business ideas. I've had some of these kicking around for years, and they haven't been done. Why? WHY?? One reason is working on a high volume of small stuff, rationalized under the heading of "having to make a living". Would I be making a better living if I were working on bigger and better things? If I made a decision to go after them? If I did not "keep busy" with the small stuff?
As I pondered this, FISHING came to mind. If I were fishing for bigger fish but had my lines full of smaller fish, what would I do with the smaller fish? Give them to someone else, or....THROW THEM BACK. Naturally, this made me think of the Steely Dan song "Throw Back the Little Ones". It's an obscure one, but I always really liked it. Here's a link....with lyrics. Give it a listen and let me know if you like it. https://www.youtube.com/watch?v=oA3RYtxUKow
If you are fishing, and you don't throw back the little ones, and you keep bringing them on board, do you know what happens? Your whole ship smells like mackerel!!!
Saturday, November 16, 2013
Generally speaking, the most successful lawyers (by any measure: financial, personal satisfaction, recognition) are the specialists. I am qualified to say this, having learned the lessons of the somewhat misguided generalist over many years. (note/disclaimer - In New York, lawyers can't call themselves "specialists", and I am NOT suggesting that anyone hold themselves out to the public as a "specialist". I am of course referring to lawyers who "focus" on particular practice areas. For our purposes I will refer to "specialists" because it reads better than "focusers" or "concentrators") Here are some observations about specialists:
1. They know their stuff. Generalists know their stuff too, up to a point, but on more substantial cases they are soon "out of their element". It's an uncomfortable feeling, and nearly impossible to explain (or justify) to a client.
2. They get paid more.....and bill with confidence, as they should. Without question, they are giving their clients value.
3. They usually find their chosen field interesting and exciting. When I was a confirmed generalist, I proudly found all areas of law interesting, to talk and think about, and to strategize about, but to actually DO.....not so much fun. Haven't we all, as generalists, had the experience of calling someone who "really knew" about a particular area of law? At some point I realized it would be better to be receiving those calls rather than making them.
4. They have systems geared for their specialty......generalists (hopefully) have general, all purpose systems, that work....to a point....but within a specialized field are grossly inefficient by comparison.
5. They know the players in their field, and they recognize the fakers. The specialists are also known (and respected) by the Judges, the Court attorneys, the Court Clerks, and the other lawyers in the case (if there are multiple parties). For the generalist, being in a big case against specialists is like playing an away game in bad weather after a west coast plane trip.
I have two main pieces of advice for general practitioners:
1. Specialize (focus/concentrate) in SOMETHING(s). Even if you are still a generalist, have one or two areas where you act like a specialist. Define yourself by it...... "I'm a ________ lawyer", make systems for it, take extra CLE in it, follow all the cases, and otherwise get really good at it. About five years ago I decided to do this with probate and estate administration. It's been a practice (and life) changer.
2. Despite everything said above, general practice experience actually makes one a more effective specialist. In a strange way, and especially today, general practice can be a specialty unto itself, IF one recognizes that there is great value in evaluating situations, handling matters when appropriate, but also...using your knowledge and experience to MAKE GREAT REFERRALS....which is the essence of specializing in general practice.....more on this in the next post.