Ten Tips for Handling Complex Probate
Copyright 2022 by St. Petersburg real estate, probate and business attorney James W. Martin. A prior version of this article was published in the August 2008 edition of ALI-ABA The Practical Lawyer and the February 2010 edition of The Florida Bar Journal.
Here are ten probate law practice tips for handling the legal aspects of administering Florida probate 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 over forty years of probate and trust law experience, these tips apply legal concepts and procedures, as well as technology, to assist the Florida probate 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 in a complicated probate case. 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 because the attorney-client privilege may be lost by meeting in the company of persons who turn out not to be clients. And the soon-to-be-non-clients may impart confidential information to the lawyer that may later create a conflict of interest for the lawyer.
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 email. The preferred client who wants to be appointed personal representative (PR) of the Florida probate estate is the one who:
- Has priority in appointment under the Florida Probate Code;
- Is capable of paying the attorney’s fee;
- Has authority to act as personal representative (“PR”) or trustee; 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 seeking to be PR do not pass this test. If they do not, it is best to refer them to another lawyer.
Some lawyers seem to forget that in some states, such as Florida, the lawyer represents the PR and not the “estate”, not the beneficiaries, not the creditors, and not any other interested persons. Beneficiaries frequently misunderstand this and require letters reminding them that they should obtain their own separate attorneys because the PR’s attorney represents only the PR.
It is best to encourage beneficiaries to obtain separate attorneys 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 non-lawyer beneficiary informed.
And, of course, a beneficiary, too, can be an excellent client for a Florida probate lawyer because beneficiaries have rights and duties that are not commonly known by nonlawyers so there is a real benefit that the the Florida probate attorney can provide them.
An Attorney Fee Agreement for Probate should be entered into between the lawyer and client confirming the terms of engagement, and if the client is to be the PR then it should also be signed by the beneficiaries, and filed in the probate court file.
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 adversaries to deal with. 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 by signing an Acceptance of Trust by Successor Trustee. In complex cases, this might require filing a petition for appointment of successor trustee with the court.
3. Start The Clocks. There are three clocks to start immediately after the probate 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 likely creditors: those who are reasonably ascertainable. Thorough search for these persons may take much effort, including reviewing bank account registers going back a year. (See David T. Smith and Robert M. Winick, Known or Ascertainable Estate Creditors: The Pope Decision, Fla. Bar J., Oct. 1988.)
Service by FedEx, UPS, etc., is the author’s preferred method of service because it is reliable, it is quick, and it 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 determining who are the creditors and beneficiaries of the estate up front in the probate process. This reduces the likelihood of an interested person attacking an act of the PR taken before the PR identified all interested persons.
4. Prepare The Pleadings Index. Like the A-Team, the lawyer handling complex probate needs a good plan. That means making checklists, lots of them. The first and most important checklist is the Probate Pleadings Index.
Every clerk of probate court maintains a pleadings index, which may be called a docket, and it is likely accessible by online search of the clerk’s website. This is a good source of information for the probate lawyer’s own pleadings index, but it is not a replacement for creating one’s own pleadings index.
Every probate has two sets of pleadings: those that were filed and those that will be filed. The probate clerk’s docket only lists pleadings that were filed, not those yet to be filed. The probate lawyer’s own pleadings index lists them both but separates them, with those already filed on the top and those to be filed on the bottom. As pleadings are filed, they move from the bottom of the list to the top.
The pleadings index contains the case caption at the top of the page, just like a court pleading, so it is a handy place from which to copy and paste the case caption when drafting pleadings, motions, and notices.
The pleadings index also contains a list of significant dates: 60 days for the inventory, 4 months for statement regarding creditors, one year for petition for discharge. Thus, the pleadings index is a one-stop source to view the case status at a glance.
5. Assemble The Team. The lawyer handling complex probate needs help, lots of help. Here’s a starting list of team players:
- Tax: CPA, tax attorney
- Financial: Bank, investment broker
- Valuation: MAI real estate appraiser, personal property appraiser, business appraiser
- Real Estate: Real estate agent, title insurance agent, surveyor
- Insurance: Insurance agent
- Co-counsel: Trial lawyer, environmental lawyer, real estate lawyer, business lawyer
It is wise early in a Florida probate law practice to create a list of professionals to call upon in time of need: a referral list. Being able to call upon someone you know will allow you to ask for favors: quick response, answers to quick questions, whether your strategies make sense.
Referral lists should include more than contact information: practice areas, date, who referred, case names, background. This will add context to your referral list, as well as jog your memory as to why they’re on your list.
When you meet lawyers from other counties and states, find out what they do and add them to your list for future reference. It might be years before you need them, but when you do, they might make all the difference in the world.
Be sure to keep your team informed. Don’t leave anyone out of the loop. When sending emails, consider including your entire team, while keeping in mind the need to maintain client confidentiality and evidentiary privileges.
For example, emails with CPAs and co-counsel on your team are protected under the attorney-client and CPA-client privilege, but emails with insurance agents, brokers, surveyors, etc. are not. The work product doctrine provides some protection in some cases, but you might not want to count on it so separating communications with those covered by attorney and CPA client privilege from others on the team might make sense.
And don’t forget to call on your team. They know more about their fields than you do; that’s why they are on your team. If they don’t, change players.
Send each team member a Probate Confidentiality Letter requiring that communications be kept confidential and within the attorney-client privilege and work product doctrine.
6. Answer Before You Are Asked. As a fiduciary, the PR should provide an interested person with information about the probate estate and its administration on reasonable request in writing. This means the PR may wait for beneficiaries and creditors to ask for information before providing it. However, that might not be the best approach.
There is a basic truth in complex probate: you can’t have too many friends. Friendships are based on trust and credibility. You create this with beneficiaries and creditors by giving them information: lots of information, timely information, accurate information, credible information, useful information. Before they ask for it.
The PR should act like the newspaper: be the first to tell the readers what’s new, what’s interesting, what’s important. And like newspapers, the PR should separate editorial comments from the facts. This means making it clear when something communicated is based on fact and when it is an opinion or estimate.
Another tip: newspapers don’t make predictions. Neither should the PR. A beneficiary who was given an estimate for his or her share never remembers it was an estimate and subject to taxes and administration expenses. Keep beneficiaries informed. Answer questions before they are asked. But don’t speculate.
7. Prepare Regular Accountings. Probate rules in some states, such as Florida, require only a final accounting, not interim accountings. But interim accountings should be used for two reasons already listed above: to start the clock and to answer before being asked.
Every state has a limitations period for objections to accountings. For example, in Florida interested persons have thirty days after service to object to an accounting. An objection not timely filed is deemed abandoned. The accounting must be served along with a notice informing the recipient of this deadline.
Banks send customers monthly statements of their checking accounts in order to flush out any problems quickly. The same applies to complex probate. The sooner the PR knows of an objection to something reported on the accounting, the better. Monthly accountings in some probates make a lot of sense; in others, quarterly accountings accomplish the purpose.
The same applies to trust accountings, but the deadline for objections in Florida is six months instead of thirty days. If the trustee only sends an annual accounting, the risk of a transaction being objected to can run a full eighteen months from the date of the transaction. This time period can be reduced by sending a trust accounting together with a Trust Accounting Limitation Notice on a periodic basis, such as monthly.
8. Diagram The Assets And Process. A picture says a thousand words…and shows work and progress. Therefore, a Probate Diagram of the probate process can inform the client of what needs to be done and what has been done.
9. Don’t Just Communicate, Collaborate. Complex probate often means there are lots of people, which means there are lots of brains. Trying to get all those brains to fix on one set of documents and act in a consistent and unified manner can be one of the most difficult aspects of a complex probate case.
In the olden days, we sent out letters by postal mail with a stack of documents for review by interested persons and their lawyers. The packages took a few days to arrive and some got lost, so we switched to FedEx and couriers for next day and same day delivery. There was still a lot of paper, and we still had the problem of getting many people to focus on many documents.
In any case, if a few weeks went by before the time for further discussion or decision came, the recipients often could not readily find what had been sent to them. This necessitated resending the package and further delay.
Today we have email, and it’s a lot faster, but people still lose their emails, or delete them, or they wind up in spam filters. And big document files are often too large for email.
Enter the Web and collaborative Web sites. Here the PR’s lawyer can post documents for password-protected secure downloading by interested persons and their lawyers no matter what the size and without taxing email systems. And enterprising lawyers can create their own websites to create virtual document rooms.
When the estate owns real estate, every probate lawyer knows that orders admitting wills to probate, orders determining homestead, and orders approving sale of real property must be recorded in the official records. Title insurance companies recommend, and often require, that the petitions also be recorded in addition to the orders. The clerk might disagree with recording the petitions, but title companies want them recorded for a good reason: title companies search indexes of the official records and often maintain duplicates of filings, but they do not maintain duplicates of probate court files. Title companies often find it difficult to obtain information from old probate files. Having the probate clerk record both the petition and order for all documents relating to real property will make it easier for title companies to do their jobs.
10. Scan, Scan, Scan. The single most useful tip for handling complex probate is this: scan the heck out of everything. Make PDF scans of every document that comes into your office and every document that goes out. Scan your incoming mail, your outgoing mail. Scan all pleadings. Scan all surveys. Scan all appraisals. Scan all environmental reports. Scan all evidence.
This includes email. Do not rely on Outlook to keep your emails. Save each email as a PDF and file it in your file for that probate case.
Adopt these rules:
- If it’s paper, scan it.
- If it’s email, save it as a PDF. If it’s an email attachment, save it as a PDF, too.
- Create a taxonomy: a consistent way of naming your scanned images.
- Set up a separate computer file folder for each client with separate subfolders for letters, memos, documents, drafts, research, pleadings, etc.
- Name your PDF scans using your taxonomy and the date of the scan.
- Run your scans through an OCR (optical character recognition) program to make your scans full text searchable (Adobe Acrobat Pro can do this).
- Invest in high quality scanners to scan 50 to 100 pages a minute.
- Create daily backups of your scanned files and save them in alternate on-site and offsite locations.
Then sit back and reap the reward of your effort: onscreen full-text searchable access to every document in your probate case. You might even forget it was complex.
Conclusion Handling complex probate is hard and time-consuming, but not impossible. The methodical application of basic Florida probate law and procedures is one way to simplify the facts and circumstances that present themselves over the course of the case. A methodical process is what made putting man on the moon possible and allowed those in control to meet the many crises that arose along the way.
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