Mark A. Bregman, Estates and Trusts Lawyer


The Perils of Probate, Part One

Probate litigation is a burgeoning and fertile practice area for lawyers.  There are many reasons why probate cases spawn litigation, but most grow from inadequate or defective estate plans nurtured by emotional dissatisfaction or greed.

As an estate planner since 1979, I encourage my clients to create an estate plan that takes into consideration not only the nature and size of their estate, but the hopes, dreams, aspirations and the character of their heirs and others interested in their estate.

If all goes as intended, everyone is either satisfied or at least left without reasonable grounds to become embroiled in an expensive controversy.  However, all too often, estate plans are not properly implemented–with costly and often destructive results.

Leo Tolstoy opens Anna Karenina (1961) with the now famous saying “All happy families are like one another, each unhappy family is unhappy in its own way.”  That sums up probate and probate litigation.  Well adjusted families come together after the death of a patriarch or a matriarch to console one another and then transition the wealth remaining after paying the bills in accordance with the decedent’s intentions expressed by a Last Will and Testament, a trust, or variety of other devices using beneficiary designations.

On the other hand, in contested probate matters, the litigants are often distantly related or not related and often don’t even know one another.  They seldom share a functional emotional bond and they have no familial reason to reach a reasonable solution.

As a result, other feelings become paramount, usually greed, but sometimes hurt emotional feelings that remain unresolved interfere in rational thinking.  The process frequently snowballs out of anxiety and lack of good information.  Usually the emotions, greed or otherwise, escalate before the litigants seek legal counsel and the litigants become emotionally entrenched in their positions, however unreasonable.  This phenomena was recently explored in an Augusta Chronicle article that described why a current estate plan was crucial to avoiding probate contests.

Lawyers are served up on the horns of a dilemma.  Their new client is entitled to competent legal representation and such representation may cost more than the amount in controversy.  Litigation is expensive with probate litigation fees for experienced counsel often between $300 and $400 an hour.  Additional experts are usually required.  If the competency of the decedent or the due execution of the Last Will and Testament is involved, there will be doctors and other experts involved, as well as fact witnesses to be deposed.  Litigants need to be aware of the potential costs before proceeding; and rational solutions–however unfair–suggest themselves when a small amount of money or property is in question.

Mediation is often a good solution, and most efficient if conducted early in the litigation before legal fees and costs run amuck.

A litigant’s best friend is an experienced lawyer who understands the probate process and the probate law, who can reasonably forecast the likely results, and who works toward that result in as uncomplicated a manner as possible.  In addition to the usual questions about how the lawyer charges, how long he has practiced law, and what qualifies him or her to represent you in this matter, good questions to ask before hiring a lawyer for a contested probate matter include:

  • Describe your specific recent experience in probate matters.
  • How much of your practice is devoted to probate litigation?
  • What do you do the rest of the time?
  • After hearing my side of the story, what else do you want to know before forming an opinion of likely outcomes?
  • Based only on my story, what do you perceive to be the most likely outcome and what other outcomes are reasonably possible?
  • What factors determine my total overall cost and what do you reasonably expect the cost to be if the case follows the path you anticipate?
  • If more than 1 lawyer is to work on my case, how will those lawyers bill for their time?
  • What additional facts would change your mind about the outcome or the cost?
  • Do you carry malpractice insurance and if so in what limits?
  • Have you ever been subject to professional discipline?  And if so, explain.

In my next post, I will explain some of the common types of contested probate litigation and how to avoid them.