Ten tips for handling complex probate.

• Author: Martin, James W.
• Position: Real Property, Probate and Trust Law

Here are 10 practice pointers for handling the legal aspects of administering estates and trusts of persons who died leaving multiple assets, substantial debt, feuding families, or other complicating factors for their trustees and personal representatives to sort out. Ripped from 30 years of probate and trust law experience, these tips apply legal concepts and procedures, as well as technology, to assist the lawyer in simplifying and managing probate and trust administration in these difficult cases.

1) Identify the Client

This is really pretty simple. One client at a time is all a lawyer can usually handle. Simultaneously representing two or more clients creates its own complications. However, when someone dies, it is common for a number of relatives to want to meet with the lawyer. This is dangerous. Attorney-client privilege may be lost by meeting in the company of persons who turn out not to be clients. The soon-to-be nonclients may impart confidential information to the lawyer, which later creates a conflict of interest. Therefore, it is best for the lawyer to sort out who will be the client before the first meeting, and, preferably, during the first phone call or e-mail.

The preferred client is the one who is capable of paying the attorneys' fee, has authority to act as personal representative (PR) or trustee, is not already guilty of wrongdoing, and appears willing to seek and accept the attorney's advice.

This factual assessment is best made during the initial conference or soon thereafter. Sometimes, potential clients do not pass this test. If they do not, it is best to refer them to the lawyer referral service.

Some lawyers seem to forget that in some states, such as Florida, the lawyer represents the PR and not the "estate," the beneficiaries, the creditors, or any other interested persons. Beneficiaries frequently misunderstand this and require numerous letters reminding them that they should obtain their own separate counsel because the PR's attorney represents only the PR. It is best to encourage beneficiaries to obtain separate counsel early in the probate process. It will make the job of the PR's attorney much easier because the beneficiary's lawyer will explain the process to the beneficiary. It is easier to keep a learned lawyer informed than to keep a nonlawyer beneficiary informed.

An engagement letter or fee contract should be entered into between the lawyer and PR confirming the terms of engagement, signed by the beneficiaries, and filed in the probate court file. A sample form of fee contract appears as Appendix 1 at the end of this article.

2) Establish Client's Base of Authority

In complex cases, clients are frequently anxious to get to work. There are assets to deal with, problems to tackle, bills to pay, and enemies to defend or attack. The lawyer must remind the client of the need for authority. This means being appointed PR by the probate court. Acting before appointment is fraught with risk. Therefore, filing a petition for probate administration should be the first step the lawyer takes to establish the client's base of authority.

It might also be necessary to be appointed PR by probate courts in other states where the decedent owned real property. For example, if the decedent's domicile was Florida, then the Florida probate proceeding should be filed first, being the domiciliary proceeding. If the decedent's domicile was not Florida, a Florida ancillary probate proceeding must be filed. Probate is ineffective as to real estate located in other states (probate is an in rem proceeding).

In addition, establishing the client's base of authority might require assuming the position of successor trustee of one or more living trusts, or even land trusts. In complex cases, this might require filing a petition for appointment of successor trustee with the court. A sample form of acceptance by successor trustee appears as Appendix 2.

3) Start the Clocks

There are three clocks to start immediately after the court enters the order admitting the will to probate and appointing the PR.

Clock 1) Publish notice to creditors. In many states, such as Florida, this gets the creditor claims period running for creditors who are not reasonably ascertainable.

Clock 2) Serve notice of administration on all beneficiaries named in the will and on all persons who would take if that will and all wills failed (intestate heirs and beneficiaries of prior wills). In many states, this gets the time period running for will contests and PR appointment contests.

Clock 3) Serve notice to creditors on all reasonably ascertainable creditors. This gets the time period running for the most troublesome creditors: those who are reasonably ascertainable. Thorough search for these persons may take much effort, including reviewing bank account registers going back a year. (1) Service by FedEx, UPS, etc., is the author's preferred method of service because it is reliable, quick, and provides proof of delivery the next day. Be sure to file proof of service with the clerk of court.

Why start the clocks ASAP? It is important for the PR to determine the interested persons in the estate as soon as possible so that the PR can obtain consent of interested persons on major decisions that arise in complex probate very early on. This means...