By Craig Watson
Our story begins with Paul, a 78-year-old divorced man who passed away in late 2013. He had two children: a son named Rip and a daughter named Kelly. Paul told Kelly that he chose her to serve as Executrix in his Will because she was responsible as compared to his son Rip who had an abusive personality and was often unemployed. Rip was hard for everyone to get along with and seemed to reserve his most intense wrath for his sister. Paul’s Will left his estate to his two children in equal shares.
When Paul died, Kelly acted quickly to probate her father’s Will. She hired her father’s long-time general practice attorney, Max, to probate the Will. Max and Paul had been golfing buddies for a long time. Kelly figured that Max drafted the Will so he would be the best choice to probate it. Max had helped Paul with his divorce and had defended him when he was arrested for driving under the influence.
Max got Kelly appointed Independent Executrix before the end of the year. Several creditors unexpectedly filed claims in the estate. Unfortunately, Max didn’t specialize in probate law and so he didn’t know how to handle the creditor’s claims. In fact, there are many general practice attorneys that will accept a probate case, thinking that it’s easy. The progress of probating Paul’s estate slowed to a crawl because Max didn’t know what to do about the creditor’s claims. The problems cascaded because the slow progress angered Rip. He began calling and emailing Kelly and Max daily, sometimes multiple times per day. His communications were very abusive. Rip even filed a large creditor’s claim of his own. Rip’s claim was frivolous but Max didn’t know how to dispose of it. Max had to charge the estate for the time he spent responding to Rip’s emails and talking to Kelly and Rip on the phone so his legal fees began to add up.
Kelly was able to sell her father’s house and land, which brought in enough money to enable Kelly to pay Max’s legal fees and make a large preliminary distribution to herself and Rip. The money didn’t placate Rip one bit and he continued to badger everyone involved. After over two years of ineffective representation, Max withdrew as the estate’s attorney. This forced Kelly to do what she should have done in the first place: research and find an elder law attorney who had expertise in probate.
Kelly made an appointment with her new elder law attorney and brought him the thick file of documents to review. After reviewing the thick file of documents, the elder law attorney realized that Max had failed to perform several procedures and give several notices required by the law. The requirements that Max had missed were only recently passed by the legislature. Since Max’s general law practice included mostly divorce, personal injury and criminal defense, he didn’t have enough volume in the probate area to justify the time it takes to keep current on all the new laws. The elder law attorney realized that in order to protect Kelly from potential personal liability, the case would have to be delayed even further to give the required notices and allow the required time periods to expire so that known and unknown potential and actual creditors, including Rip, would not be able to file claims against Kelly individually after the estate was closed. This delay infuriated Rip even more. However, the elder law attorney was experienced in dealing with difficult estate beneficiaries and was able to shut down Rip’s abusive communications to his sister.
The delays, frustration, extra expense, and exposure to liability that Kelly experienced could have been avoided if she had hired an elder law attorney instead of her father’s general practice attorney. Probate law is a complicated field. The legislature and the courts are constantly making new laws, adding to the complexity. The sheer volume of all this change is forcing more and more attorneys to choose to specialize or limit their practice.
When Kelly first called her father’s attorney, before telling him who she was or why she was calling, she should have asked him to tell her specifically which two or three areas of the law accounted for the majority of his practice. If his answer didn’t include probate or estate law, she would have been able to deduce that she should hire a different attorney who had expertise in the field of law that she needed.
Craig Watson’s law practice focuses on Estate Planning, Probate, Guardianship and Elder Law. Formerly a CPA, he has 25 years of experience. Call 903-813-8500 or go to www.craigwatsonlaw.com for more information.