California Family Law News and Commentary


Probate This!

How to Win Friends and Influence Judges
         © Robert Kroll,  November 18, 2003

After the death of a loved one, especially a parent, there is a natural and very common tendency for the bereaved to lose focus, to become deeply, almost obsessively attentive to relatively trivial details related to funerals and burials. They tend to become confused, angry, jealous and even paranoid.   In eighteen years of being a California probate attorney, I have seen dozens of families in this type of after-death crisis. This phenomenon plays itself out in disputes over the dozens of items of personal property left behind, or over bank accounts, corporate stock, real estate, and life insurance payouts. Families can be torn apart in these tempestuous arguments. These destructive disputes are avoidable.

Jealousy and Paranoia:

I would be retired today if I had a dime from every person who told me: “My brother (or sister) is stealing from my dad’s estate.” Or, “I can’t trust my uncle to administer my mother’s probate.” There is a common misconception that: “He who manages a probate estate has a license to manipulate the estate to his or her advantage and/or to steal estate property.”   This fear arises from the understandable notions that “Probate is Hell”, lawyers are weasels,   and that which is not nailed down will be taken by the first person with access to it. Jealousy and paranoia are the roots of these beliefs. Fortunately, there is little truth or general support for these propositions. Those evils are the rare exception. The rule is that probate protects the beneficiaries of estates from losses of inheritance, guards against malfeasance, self-dealing and dishonesty, and is a process that can be completed without substantial pain and strain within six to eight months. The best advice: before arguing with a family member who is attempting to manage an estate, take three deep breaths. Hold your tongue. Try to remember that this person you are about to fight with has also just lost someone close to them. They, like you, are grieving. They, like you, are trying to come to terms with the loss and figure out how they are going to move forward in life.   This is not to suggest they have a right to a greater share of the estate than the law, or the last will, would dictate. But their unwillingness to talk business with you may be more a result of hyper-sensitivity, emptiness and sadness, than of bad motives .

Executor's Duties, Rights and Liabilities:

Being named executor or administrator of an estate may seem an honor, and it is a trusted position. It is a bit like being named chairman of the Christmas party committee at work or of a working committee of the PTA, a club or union. It is a responsibility with compensation. The administrator of a California probate estate is entitled to payment at the end of the job of a small percentage of the estate (see http://www.berkeleyfamilylawyer.com/probate.html). Many probate executors refuse payment the same way any family member would refuse to accept payment for performing any other family duty. Their work is performed under the supervision of a lawyer and with the watchful eye of a superior court judge and her staff of probate examiners. Little wrongdoing goes undetected. And wrongdoing is punishable by monetary fines, termination of executor’s status, and even criminal prosecution in extreme situations.

Executors are the watchdogs of the estate named in wills. Administrators perform the exact same functions where no legal will was left by the deceased. Both are appointed by the court and both may be required to post a surety bond for the value of the estate

    Are Lawyers Weasels?

Yes. But only a relatively small percentage of them:   perhaps one in a thousand (there are nearly 200,000 licensed California lawyers). Every month we read in our State Bar newsletter that lawyers are being disciplined – that is, suspended from practice, sent for re-training, or even disbarred. Not every weasel is disciplined. But the risk of getting caught is high and the penalty is extremely severe to those who are taken up on ethics charges. The vast majority of lawyers attempt to do their job to the best of their ability. The better their work, the better the reward. Good lawyers do not trust the weasels. Nor will judges trust them. The bottom line: it is very unlikely the lawyer handling your probate administration is a weasel.

Are You Out of the Loop?

Many lawyers fail to communicate with their clients, or with the beneficiaries of the estate, except when forced to do so. All beneficiaries of an estate, and other interested parties, are entitled to notice of all significant actions taken. The probate file is a public record available during the business day for review. There are no secrets in probate. If you suspect a problem, you can always go down to the court house and review the probate file, which will include all documents filed in the case and may include a judge’s or clerk’s notes of what has happened to date.

Bottom Line:

Follow these simple rules to avoid unnecessary problems:

•  Don’t antagonize any family member by attempting to discuss the financial or other business of the deceased person’s estate. Let them bring it up.

•   Be discreet: don’t discuss your misgivings about one family member with other family members – your comments will be misconstrued.

•  Collect information – deeds (from the county recorder), birth and death certificates (County Bureau of Vital Statistics), bank statements.

•  Review the material at http://www.berkeleyfamilylawyer.com/probate.html , which answers many common questions.

If you have other legal questions about your rights or someone’s wrongs, contact a lawyer.

###