Here's a paradox.......
"An attorney's ethics are directly proportional to the number of ethical issues he encounters".
This is because the most ethically aware attorneys will SEE issues as they arise, while the ethically challenged will be unaware of the problems they are about to encounter.
I wonder how many law students have taken an ethics course, and exams, and thought, "This is all academic; these things don't actually happen." Well, it's true in one way.....real practice is WAY stranger, and much more ethically challenging, than any law school exam.
If your practice is presenting you with ethical issues to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.
At the core of many of these situations is a recurring question.......WHO IS MY CLIENT?
This arises in many contexts, but is especially prevalent in elder law, estate planning, and estate administration. Here are a few examples:
1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.
2. A person calls you and inquires about your fees because "Mom wants to sell her house".
3. A person calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent and adult child, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the sibling you met with cannot be trusted with money.
4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.
5. Same scenario as #4, except when you meet the parent a second time, they seem to have deteriorated mentally....Upon telling this to the two children, the first one tells you this is how it has been going, and the second one tells you that the other child has not been giving the parent their medication.
6. You are contacted by the child of a person who died six years ago. There is no will. The person who contacted you lives in the house owned by the decedent, and has lived there his whole life. There are three other children who do not live there, and have not taken any action, until recently they began to inquire. The person who contacted you wants to be the fiduciary.
All these scenarios are real. In fact, they are situations I have encountered in the past year alone! These situations have one thing in common. One cannot proceed until determining "who is the client?" and reconciling that with the appropriate ethical issues. Very often one CAN proceed but must (or should) obtain proper waivers from parties who could later criticize the conflict. Whether we get written waivers or not, prudence dictates documenting what we are doing and why.
Something I always do if a parent and child are in my office, and I sense a "Who is my client" situation.......I tell them that at some point I MUST meet with the parent alone, and I mean ALONE, and that I am doing this for their benefit. When I meet with the parent alone, I make very clear that I am THEIR attorney, that we have attorney client privilege, that I will not do anything they don't want, that they can call me on their own if they wish, etc....and, I DOCUMENT MY FILE that I have had this meeting. In some cases, I will ask an associate to sit in on the meeting, and make notes as well. It is THAT important.
It usually takes some work to untangle these initial ethical issues. Don't succumb to the temptation to ignore the issues.
A related paradox is -
"the person who doesn't want you to spend time resolving the ethical issue, is the one who really needs you to resolve it".
In estate planning matters, don't be afraid to ask yourself "How is this going to look later?", and don't be afraid to ask that person (client?) across the desk "How is this going to look later?
I like being able to do right, and have it LOOK right. And what I tell the potential client, because it's true is: WE WANT A RESULT THAT WILL STAND (sorting out the ethical stuff really boosts the success likelihood. Most clients understand and appreciate this)
Showing posts with label Probate. Show all posts
Showing posts with label Probate. Show all posts
Monday, January 15, 2018
Wednesday, March 11, 2015
Probate Complexities: Part 1
In the last post I set forth what an ideal (easy) probate would look like, noting that varying a few factors can add serious complexity. Here are a few variations and how they play out:
- A Will that is not attorney prepared and/or supervised. These can be harder to probate because of certain legal presumptions. When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done. This can be overcome, but the burden is on the potential objectants. It is a heavy burden.
On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution. This is a heavy (and dangerous) burden. It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).
Nobody can actually remember this stuff. When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.
Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will. They now have a burden they would not have had if they had used an attorney.
To be clear on this....the above refers to the actual Will execution. Other grounds that someone might have to object could still be pursued. That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.
2. Two witnesses and a witness Affidavit. The law in NY is TWO witnesses. Not one. Not one plus someone who is also a beneficiary. Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will. This essentially says they were there, they signed, and everything that was supposed to be done, was done. It saves everyone from having to locate the witnesses years later. It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.
This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step. Very bad. Very inconsiderate to the people trying to probate the Will later.
3. We only have a copy of the Will, not the original. This can be a BIG problem. You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome. There must be testimony regarding what happened to the original. And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!! You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible. Probating a copy is very high pressure and stressful because many things can go wrong.
This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be.
Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive. It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.
Next post - More probate complexities.
- A Will that is not attorney prepared and/or supervised. These can be harder to probate because of certain legal presumptions. When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done. This can be overcome, but the burden is on the potential objectants. It is a heavy burden.
On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution. This is a heavy (and dangerous) burden. It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).
Nobody can actually remember this stuff. When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.
Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will. They now have a burden they would not have had if they had used an attorney.
To be clear on this....the above refers to the actual Will execution. Other grounds that someone might have to object could still be pursued. That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.
2. Two witnesses and a witness Affidavit. The law in NY is TWO witnesses. Not one. Not one plus someone who is also a beneficiary. Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will. This essentially says they were there, they signed, and everything that was supposed to be done, was done. It saves everyone from having to locate the witnesses years later. It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.
This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step. Very bad. Very inconsiderate to the people trying to probate the Will later.
3. We only have a copy of the Will, not the original. This can be a BIG problem. You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome. There must be testimony regarding what happened to the original. And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!! You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible. Probating a copy is very high pressure and stressful because many things can go wrong.
This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be.
Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive. It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.
Next post - More probate complexities.
Sunday, March 1, 2015
Probate "Complexities"
To understand things that would add complexity to probating a Will, it is useful to look at what an ideal (and easy) probate looks like. The complicated situations occur when one or more of these simplifying factors are missing, or when some troubling variation is in play.
In an ideal situation, we have the following:
- An attorney prepared and supervised Will.
- Two witnesses have signed the Will, and also signed a Witness Affidavit.
- We have an original Will, not a photocopy.
- There are no corrections, deletions or alterations on the Will.
- The staples have not been removed.
- We know who the distributees (people who would inherit if there were no will) are, and we know where they are. AND, even better, they will sign a Waiver.
- We have a Will that names an Executor and that person is alive, willing to serve, and doesn't have anything about them that would prevent them from serving.
- The Will doesn't do anything that would tick off an interested party.
- The terms of the Will are clear and easy to understand.
- The person's non-probate assets (i.e. - accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.
- There isn't a spouse being cut out in the Will (thus triggering a right of election).
- The death certificate lists an address in the County you think it should.
- There aren't big creditor claims, or Medicaid liens, or open taxes (or years of unfiled taxes when they should have been filed)
- We know what the assets are and where they are....and nobody has been plundering them with a power of attorney.
- The person did their Will a few years ago (as opposed to a few days, or hours, before they died)
Contrary to what many people think, most Wills fit the profile above. Things need to be done, and they can be easily done.
Of course, there are many situations where one or more of the above complexities are in play. They can all be addressed, but they take some know-how, some expense, and some time.
These issues are precisely the reason why I cannot answer the question "How much do you charge to probate a Will?" I answer that question AFTER I know about the existence, and extent, of the complexities.
Next post - How do we deal with some specific complexities?
In an ideal situation, we have the following:
- An attorney prepared and supervised Will.
- Two witnesses have signed the Will, and also signed a Witness Affidavit.
- We have an original Will, not a photocopy.
- There are no corrections, deletions or alterations on the Will.
- The staples have not been removed.
- We know who the distributees (people who would inherit if there were no will) are, and we know where they are. AND, even better, they will sign a Waiver.
- We have a Will that names an Executor and that person is alive, willing to serve, and doesn't have anything about them that would prevent them from serving.
- The Will doesn't do anything that would tick off an interested party.
- The terms of the Will are clear and easy to understand.
- The person's non-probate assets (i.e. - accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.
- There isn't a spouse being cut out in the Will (thus triggering a right of election).
- The death certificate lists an address in the County you think it should.
- There aren't big creditor claims, or Medicaid liens, or open taxes (or years of unfiled taxes when they should have been filed)
- We know what the assets are and where they are....and nobody has been plundering them with a power of attorney.
- The person did their Will a few years ago (as opposed to a few days, or hours, before they died)
Contrary to what many people think, most Wills fit the profile above. Things need to be done, and they can be easily done.
Of course, there are many situations where one or more of the above complexities are in play. They can all be addressed, but they take some know-how, some expense, and some time.
These issues are precisely the reason why I cannot answer the question "How much do you charge to probate a Will?" I answer that question AFTER I know about the existence, and extent, of the complexities.
Next post - How do we deal with some specific complexities?
Monday, February 16, 2015
Probate - The Non-Dirty Word
The word "probate" is often tossed around as something to be avoided. As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.
On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.
But what is actually being avoided? Is avoiding it worth the effort?
What is probate, actually?
In New York, probate means that a Will has been recognized by the Surrogates Court as proper. The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called "Letters Testamentary". That is the Executor's proof that he/she has authority to act on behalf of the Estate.
When there is a Will, in order to transfer any asset that was owned in the name of the deceased person, you need Letters Testamentary. This applies to bank and brokerage accounts, real estate, co-op apartments, and any other assets.
If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account? Nope. The bank will tell you to come back with Letters Testamentary. What they are really saying is "get the will probated".
Probating a Will is a Surrogate's Court proceeding. The specific facts and circumstances will determine whether it's simple (and many times it is) or complicated.
I've heard people say that many procedures were "invented by lawyers to make things complicated so lawyers can make money". I see it quite differently, and I would summarize the need for these proceedings as follows:
"There is no end to the creativity and deviousness of some people when it comes to not doing what is proper, ethical, moral and legal. The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit. Related to that is sometimes it's just not clear that the "Will" in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)"
Since there is no way for the Court to know in advance whether a particular Will has "issues", all Wills have to follow the procedures. That being said, VERY often you can identify the interested parties, they can all sign a "Waiver and Consent", and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.
Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous. If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will? Certainly, but we lawyers didn't create a system to encourage that. Personally, I'd rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases. But hey, we can only play the hands we are dealt.
Probate is not a dirty word. It's a necessary proceeding so that a Will can be carried out. Next post, issues that can arise which may add complexity.
Tuesday, January 20, 2015
More "Little Things" That Affect Probate
The more one practices in a particular area, the more "little things" one encounters. Some of them hardly ever happen, but surprisingly, some are quite common. All these little things affect how the case proceeds, how much work the attorneys have to do, and how long the matter may take. Here are just a few "little things"....
1. Sometimes a person has a right to inherit, but before they receive their inheritance, they die. We call these persons "post-deceased". A post-deceased person does not lose their rights, their estate has whatever rights they would have had. In Surrogates Court, an "estate within an Estate" is quite common.
2. What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding? Same result as above, their estate must be notified. Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate. Very frustrating.
3. A person cannot serve as a fiduciary if they were ever convicted of a felony. I once found out my client was a felon after I had gotten him appointed. While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment. I was called in and asked about it, so I had to testify about what I knew and when. Not pleasant, and fortunately no repercussions, but a lesson learned. Now I always ask. Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago. I told her I was sorry, but I could not file a probate petition for her.
4. What if someone was a convicted felon but has a "waiver of civil disability" from a court? I once had this situation, where my client was opposing the person being appointed. In such a situation it is discretionary, and the Judge appointed this low life (my opinion). Now we will end up fighting during an accounting proceeding because this person has acted quite badly.
5. What if inheritance rights depend on establishing paternity? I've been involved in quite a few of these. There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases. Complicated stuff but very interesting.
The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE. Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.
Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play. When it does, it's nice to know a lot of little things.
1. Sometimes a person has a right to inherit, but before they receive their inheritance, they die. We call these persons "post-deceased". A post-deceased person does not lose their rights, their estate has whatever rights they would have had. In Surrogates Court, an "estate within an Estate" is quite common.
2. What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding? Same result as above, their estate must be notified. Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate. Very frustrating.
3. A person cannot serve as a fiduciary if they were ever convicted of a felony. I once found out my client was a felon after I had gotten him appointed. While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment. I was called in and asked about it, so I had to testify about what I knew and when. Not pleasant, and fortunately no repercussions, but a lesson learned. Now I always ask. Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago. I told her I was sorry, but I could not file a probate petition for her.
4. What if someone was a convicted felon but has a "waiver of civil disability" from a court? I once had this situation, where my client was opposing the person being appointed. In such a situation it is discretionary, and the Judge appointed this low life (my opinion). Now we will end up fighting during an accounting proceeding because this person has acted quite badly.
5. What if inheritance rights depend on establishing paternity? I've been involved in quite a few of these. There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases. Complicated stuff but very interesting.
The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE. Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.
Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play. When it does, it's nice to know a lot of little things.
Saturday, November 29, 2014
Important "Little Things" That Affect Probate
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".
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".
Thursday, August 15, 2013
"So and So Died, and....."
Every case has a story, a set of facts that answer the question "What is this about?"
That is always the first question. The first question I ask a new client. The first question I address when telling an associate or paralegal about a new matter, and the first question judges ask whenever you appear in court.
In the last few years I've been doing a lot of probate and estate administration cases. I always had a few of these in general practice, and was surprised how much I liked them. Sometimes when I tell people I do "probate and estate administration" they say "Oh, estate planning?" Well....no, the cases I have are generally ones where they didn't do any fancy estate planning, and then....they died. This turns out to be most cases where people die, and since none of us is getting out of here alive, it seems like a recession proof, law practice growth field.
It is also sufficiently complicated that every lawyer is not trying to get into it (I like to think it's because of the complexity, but perhaps other lawyers find it distasteful). I find it challenging and not distasteful. There is actually something satisfying in bringing a successful completion to someone's affairs. So, I now focus most of my attention on these cases, and have a website devoted to it. www.queensprobate.com. I now have an office full of cases where the beginning of the answer to the question "What is this about?" is always the same....
"So-and-so died, and......"
Thus begins a probate and estate administration case. In New York, probate means there is a will, estate administration means there isn't. Either way the dead person's assets are going SOMEWHERE. Ah, but where, and how, and who is involved, and what's going to happen?
Although the stories all start out the same (somebody died and...), after that it is never the same. Sometimes all falls into place, everybody is lovey-dovey, and it's just a matter of knowing what papers to file. Sometimes these cases are dysfunctional family feuds, with acrimony and bitterness that would humble the worst matrimonial case. If there are anger, jealousy, and other toxic emotions involved in a contested matrimonial, contested estate matters have that and more. It is not uncommon to find a range of toxic emotions among numerous family members (generally the children of an older person), but that none of it has been openly discussed for many years. Then, the dreaded unspoken thing happens (so and so dies....), and now all the things that have not been talked about MUST be talked about. It would be easy to say that these cases all come down to money, and many of them do, but it is also money infused with deep-seated emotional and psychological issues.
I stopped doing matrimonial cases many years ago, precisely because I did not like being involved in such bitterness. One of the things I hated about matrimonial cases was, they never ended. The parties were always coming back for more. Estates are not like that. Even when they are crazy and bitter, at some point they end, the dead remain dead, and the living move on. And no matter what they did during the case, as they fought over their relatives money, none of them are getting out of here alive either.
Perhaps I love the ultimate justice of this area of practice.
That is always the first question. The first question I ask a new client. The first question I address when telling an associate or paralegal about a new matter, and the first question judges ask whenever you appear in court.
In the last few years I've been doing a lot of probate and estate administration cases. I always had a few of these in general practice, and was surprised how much I liked them. Sometimes when I tell people I do "probate and estate administration" they say "Oh, estate planning?" Well....no, the cases I have are generally ones where they didn't do any fancy estate planning, and then....they died. This turns out to be most cases where people die, and since none of us is getting out of here alive, it seems like a recession proof, law practice growth field.
It is also sufficiently complicated that every lawyer is not trying to get into it (I like to think it's because of the complexity, but perhaps other lawyers find it distasteful). I find it challenging and not distasteful. There is actually something satisfying in bringing a successful completion to someone's affairs. So, I now focus most of my attention on these cases, and have a website devoted to it. www.queensprobate.com. I now have an office full of cases where the beginning of the answer to the question "What is this about?" is always the same....
"So-and-so died, and......"
Thus begins a probate and estate administration case. In New York, probate means there is a will, estate administration means there isn't. Either way the dead person's assets are going SOMEWHERE. Ah, but where, and how, and who is involved, and what's going to happen?
Although the stories all start out the same (somebody died and...), after that it is never the same. Sometimes all falls into place, everybody is lovey-dovey, and it's just a matter of knowing what papers to file. Sometimes these cases are dysfunctional family feuds, with acrimony and bitterness that would humble the worst matrimonial case. If there are anger, jealousy, and other toxic emotions involved in a contested matrimonial, contested estate matters have that and more. It is not uncommon to find a range of toxic emotions among numerous family members (generally the children of an older person), but that none of it has been openly discussed for many years. Then, the dreaded unspoken thing happens (so and so dies....), and now all the things that have not been talked about MUST be talked about. It would be easy to say that these cases all come down to money, and many of them do, but it is also money infused with deep-seated emotional and psychological issues.
I stopped doing matrimonial cases many years ago, precisely because I did not like being involved in such bitterness. One of the things I hated about matrimonial cases was, they never ended. The parties were always coming back for more. Estates are not like that. Even when they are crazy and bitter, at some point they end, the dead remain dead, and the living move on. And no matter what they did during the case, as they fought over their relatives money, none of them are getting out of here alive either.
Perhaps I love the ultimate justice of this area of practice.
Thursday, June 10, 2010
Who Should Really Make a Will?
Who Should Really Make a Will?
The answer to this question starts with a question.....
"Who would inherit from you if you did not make a Will?"
When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.
People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.
When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.
I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?
Think this never happens?
I GET THESE ALL THE TIME!!!
I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".
I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....
Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.
Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.
People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.
Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.
I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.
Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.
Next post - something not death related!!
Posted by nylaw2law 0 comments Links to this post
Labels: lawyering, Who Should Really Make a Will?, Wills
The answer to this question starts with a question.....
"Who would inherit from you if you did not make a Will?"
When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.
People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.
When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.
I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?
Think this never happens?
I GET THESE ALL THE TIME!!!
I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".
I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....
Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.
Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.
People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.
Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.
I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.
Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.
Next post - something not death related!!
Posted by nylaw2law 0 comments Links to this post
Labels: lawyering, Who Should Really Make a Will?, Wills
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