Some Thoughts About Contested Probate Cases

June 13, 2016

Family law was never my thing. Alas, we don’t often know how life will turn out. About 15 years ago my practice focus shifted much more heavily into probate and estate planning. And probate, it turns out, is family law without the divorces, mostly.

Most probate matters—no good stats, but far more than 90% is my best estimate—get processed easily, quickly, and for a few thousand dollars. Then there are the outliers, which almost always have in common: (a) a dysfunctional family; and (b) deceased or demented parents. Sometimes, there’s lots of money or complicated assets, but in plenty of cases an inverse relationship exists between value and the intensity of the battle.

The battle may arise in a conservatorship / guardian case, or after one or both of the parents have passed. At their core, I think these cases arise because a strong parent or two is gone in the mind, the body, or both. With the passing, all of the old stuff bubbles up.

Whether the case arises before or after the parents are gone, some pre-case guidance may help avoid too much “awful.”

This Is Your Family. In a marital dissolution case, many attorneys remind their clients that they loved their spouse, once. It works, sometimes, to keep the temperature down. It doesn’t work in probate cases, however, for siblings may have hated one another, always. Still, family presents future challenges. Siblings may hate, but their children—the cousins—might not, which makes very difficult the weddings, funerals, myriad “growing up” events, and other encounters we all experience. During the battle those issues feel irrelevant, but they will likely matter, someday.

War Escalates. No contested case with which I have been involved did not get worse—from where it started—before it got resolved. A fight over $10,000 will almost always turn into much, much more before it’s over. Budgeting for a probate matter can be very difficult, but if your means are limited you cannot, almost surely, pay the fees which will accrue.

Principles My A*s. For sure, there are bad actors in probate cases. Sometimes, one family member really is wrong, and sometimes s/he is really wrong! And in some situations action may be necessary, either because someone forces you to engage—you’re the good child, and your bad sibling sues you—or because inaction might adversely affect a parent or disabled adult. Regardless, attorneys are expensive, cases get bigger, and the temperature gets high when family members are involved.

All of the foregoing aside, too often the battle develops because some or all of the litigants are fighting those old, afore-mentioned battles which, to them, must be fought. Positions must be vindicated. (It’s hard here not to think about “Mom always liked you best,” courtesy of Tommy Smothers.) ALERT! The process fails! I have handled at least two dozen probate cases and never, not once, has an outcome addressed unhealed wounds from days gone by. Never. Not. Once.

Unfortunately, there will always be unhealed wounds and present-day battles which can be fought. And there will be attorneys who are available. Not everyone shares my view about the limits of the probate process, and some attorneys adhere to the “if the client wants action, action will not result in a violation of any rule or statute, and there’s a checkbook with a positive balance, who am I to say?”

I hope I don’t sound holier than thou here. I have ended up in cases which made sense, and then they didn’t. And stuff happens. That said, if a couple of attorneys express reluctance or concern about representing you in a contested probate matter, listening to them—as opposed to finding that third attorney—might serve you well.

2 Responses to Some Thoughts About Contested Probate Cases

  • Mark,

    I am with you. I have been a forensic accountant or expert witness in probably two dozen of these cases. You are right on. My advice to those being drawn into the ugly probate battle is not to engage. The costs and heartache never seem to be worth it. Life is way too short and I speak from experience in having a client die during the middle of an ugly, ugly fight with her sibling.

  • Thanks. You nailed it too!

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