Death and Taxes Blog

This article gives a nice introduction to the role of the Public Administrator in the probate process.  The article focuses on California, but the same general idea applies in Illinois.  Simply put, the public administrator handles estates when a person dies and no one comes forward to do the job.  Section 13-4(a) of the Illinois Probate Act (755 ILCS 5/13-4(a)) has the full story (emphasis added):

When a person dies owning any real or personal estate in this State and there is no person in this State having a prior right to administer his estate, the public administrator of the county of which the decedent was a resident, or of the county in which his estate is situated, if the decedent was a nonresident of this State, may take such measures as he deems proper to protect and secure the estate from waste, loss or embezzlement until letters of office on the estate are issued to the person entitled thereto or until a demand for the removal of the personal estate from this State is made by a nonresident representative pursuant to the authority granted by this Act. When letters of office are issued to the public administrator, he has the same powers and duties as other representatives of decedents' estates appointed under this Act until he is discharged or his authority is sooner terminated by order of court.

The Cook County Public Administrator has a webpage, located here.  For those readers interested in purchasing real estate out of probate, you may find the page worth your while -- the Public Administrator sells real estate via public auction four times a year.

Premarital agreements are becoming more and more common, but they are still controversial -- a lot of people are horrified by them.  However, even if you are one of these people, I think you can find value in one part of the premarital agreement process: where each spouse discloses his or her financial information to the other.  I would take this a step further, and also do what Mary Hunt, the founder of DebtProofLiving.com, suggests in an article in today's Wall Street Journal:

Ms. Hunt advocates sharing credit reports before marriage, which can reveal a runaway spender.  "It's more important than a blood test.  It's a character reference." 

This piece of advice comes in an article written by Jeffrey Zaslow, entitled "Financial Infidelity: When It's OK To Shop Behind Your Spouse's Back."  The article is well worth reading (as is most everything Mr. Zaslow writes) -- you can find it here (subscription required).

Last September I blogged about an attempt to re-open the estate of Texas rancher John G. Kenedy Jr.  Mr. Kenedy's estate was closed many years ago, but Ray Fernandez (the grandson of Mr. Kenedy's maid) sought to reopen the estate, to try and prove that his mother was Mr. Kenedy's daughter.  According to this article from the Washington Post, state District Judge Manuel Banales has denied Mr. Fernandez's request.

Monday night I was flipping around on the TV, and came across a show entitled "Celebrity Prenups" on VH1 -- here is a link with more info.  The show was a bit ridiculous (are reporters from Modern Bride and US Magazine really experts on prenuptial agreements?), but made some interesting points.  Essentially, celebrity prenups fall into three categories: good, bad, and really bad (aka non-existent).

Good: Donald Trump's attorneys evidently have more skill than his hairstylists.  Mr. Trump has been divorced twice, and both prenups have been upheld.

Bad: Steven Spielberg's prenup with Amy Irving didn't hold up because Ms. Irving wasn't represented by an attorney.  (That the prenup was written on a napkin also probably didn't help matters.)  There's also a question of whether Britney Spears' prenup with Kevin "K-Fed" Federline would be invalidated if the two divorced -- the prenup was signed on the day of their wedding (a definite no-no).  The prenup appears to have so confused and disoriented Mr. Federline that he wound up wearing a tracksuit with the words "Pimp Daddy" on the back to the actual ceremony.

Really Bad (aka Non-Existent). For a show about celebrity prenups, this program sure spent a lot of time discussing parties who took a big hit because they didn't sign a prenuptial agreement prior to marriage.  Falling into this category: Michael Douglas (with respect to his first wife, Diandra Douglas) and Harrison Ford (with respect to his second wife, screenwriter Melissa Mathison).  Jessica Simpson may also be added to this list in the near future.

Last week I stumbled across Taxalicious, a new tax-related blog.  It's worth checking out -- with Taxalicious and Joe Kristan's Tax Updates, you can get your tax information with a nice dose of humor and personality.  A favorite recent post from Taxalicious is "Morans get caught in IRS dragnet" -- check out this link (gotta love that pic!).

Yesterday's New York Times featured an interesting article about inheritances.  The article -- written by Eduardo Porter and available here (registration required) -- makes it clear that most Americans shouldn't expect to receive a major inheritance.  The table included in the article tells the story:

-The total value of all U.S. inheritances rose to $190 billion in 2005.

-However, the value of the median inheritance has dropped from $42,167 (in 1965) to $29,221 (in 2005) -- these figures are adjusted for inflation.  The "problem"?  People living longer (which depletes asset values) and large post-WWII families (you'll have to share your inheritance with your siblings).

-Ninety percent of all estates have a value of $244,600 or less, and only 2% of all estates are worth $782,300 or more.

Two other interesting points from the article:

1. "By midcentury, $25 trillion will be passed from the old to their offspring."  Not to state the obvious, but that's a huge transfer of wealth.

2. "A big majority of U.S. households - 86 percent - do not expect to receive an inheritance, according to a survey by the Federal Reserve."  That may be true, but I sure have seen people's expectations change when a loved one dies and potential inheritance becomes reality.

Sections 23-2 and 23-3 of the Illinois Probate Act (755 ILCS 5/23-2 and 23-3) deal with the removal of an estate representative (executor or administrator).  Under §23-2, a representative may be removed for the following reasons:

(1) the representative is acting under letters secured by false pretenses;

(2) the representative is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a disabled person;

(3) the representative is convicted of a felony;

(4) the representative wastes or mismanages the estate;

(5) the representative conducts himself or herself in such a manner as to endanger any co‑representative or the surety on the representative's bond;

(6) the representative fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;

(7) the representative fails to file an inventory or accounting after being ordered by the court to do so;

(8) the representative conceals himself or herself so that process cannot be served upon the representative or notice cannot be given to the representative;

(9) the representative becomes incapable of or unsuitable for the discharge of the representative's duties; or

(10) there is other good cause.

The court can also remove a representative if he or she ceases to be a U.S. resident.

If I had to guess, I'd say that (4) -- dealing with a representative's waste or mismanagement of the estate -- is the most common reason why a representative might be removed.

In most cases, the party seeking removal (usually a beneficiary of the estate) will file a petition with the court, asking that a citation issue against the representative.  The citation will be served on the representative, who must appear in court on the date shown in the citation (known as the "return date"), and -- in the words of §23-3 -- "show cause why he should not be removed for the cause stated in the citation."

Ralph Haines is described in this article as "West Virginia's top probate lawyer."  I don't know whether or not that's an accurate characterization -- it's possible that the designation just makes it more effective when the article's author (Steve Korris) states that Mr. Haines "blew his own will." 

Everyone loves a "cobbler's children have no shoes" story, but I'm not sure that this is such a story.  The problem doesn't seem to involve a mistake in the drafting of the Will; rather, the problem is that the sole beneficiary of Mr. Haines' estate (his daughter, Linda) and the executor (Pamela Kimble, formerly Mr. Haines' secretary) didn't get along.  (I will say that I have a question about why Linda Haines wasn't named as executor of the estate in the original Will, or why she wasn't at least given the power to replace an executor she didn't like.)

I encourage people to think carefully about the personalities involved when they select fiduciaries (agents under powers of attorney, guardians, executors, and trustees).  Did Mr. Haines do a poor job of that?  It's easy for us to say that, given that things didn't work out well -- presumably Mr. Haines didn't want "nearly a million dollars" from his estate to be spent on legal fees.  However, it's often difficult to determine how friends and family members will act after your death.  We have to approach these decisions thoughtfully, but with the realization that we can't know with 100% certainty how a fiduciary (or a beneficiary) will behave.  Choosing fiduciaries is an art, not a science.

Last week I wrote about blogs and ghostwriting.  My post was a response to an article by Edward Poll in this month's Law Practice Today.  Since the issue of ghostwritten blogs is a hot topic these days, I sent Mr. Poll an e-mail, asking if he'd care to share his thoughts on the matter.  Mr. Poll's response to my post appears on his LawBiz Blog, here.

In reply to Mr. Poll's response, I would make three points:

1. Mr. Poll states that "[i]f we had to do everything ourselves, we all would be sole practitioners," and then sets forth a number of situations he feels are analogous to using a ghostblogger.  For me, the question of whether a given type of work may be delegated involves thinking in terms of Expectation, Representation, and Relationship:

Expectation.  Could the client reasonably expect the attorney to do this work?  

Representation.  Did the attorney represent to the client that the attorney would do this work? 

Relationship.  Is the work related to the attorney's substantive law practice, or is it merely procedural?

Let's look at the situations mentioned by Mr. Poll -- I think most of them are distinguishable from the matter of the ghostwritten blog:

"When a rainmaker brings new business into the firm, the work is often done by other lawyers."  The fact that other lawyers are doing the work should be disclosed by the rainmaker, in his engagement letter to the new client and in the invoices to the client (which should show exactly what personnel did what work).  My post made it very clear that, while I think using a ghostwriter for your blog is probably a mistake, my bigger problem is with the failure to disclose the use of a ghostwriter. 

"When lawyers write briefs, frequently those briefs are edited by other lawyers, by secretaries and others."  I would add that associates frequently write entire briefs for the partners who employ them.  Once again, this should be disclosed to the client as discussed above.  If Andy Associate spends 15 hours writing a brief, which Penny Partner then spends 15 minutes reviewing before it's filed, Penny Partner has no business claiming that she wrote the brief.

"When clients pay bills, accounting folks make the deposits."  This is a very strange analogy.  Clients don't care who is depositing their checks -- there's no expectation that the attorney will do this, and it has nothing to do with anything substantive in the representation. 

"When a lawyer or law firm creates a marketing brochure, it is often a professional marketing person or copy writer who develops it --- not the lawyer, but for the approval of the principal lawyer."  This is probably Mr. Poll's best point, but I would argue that there is no expectation that the attorney is writing his or her own marketing copy, and (hopefully) no representation that the attorney did so. 

You could also argue that most marketing has no relationship to anything substantive.  I'd say that's the difference between regular marketing and blogging.  You probably wouldn't ask an attorney to put together a print ad campaign for her firm, but you also wouldn't ask a legal marketer to write blog posts about substantive areas of law. 

2. To me, a more analogous situation to ghostblogging without disclosure would be this one:

Abe Attorney is a solo practitioner who is meeting with an important new potential client.  The potential client asks for writing samples from Abe in his substantive area of practice.  Abe either doesn't have the time or the skills to prepare such writing samples, so he hires Lisa Lawyer to write them for him.   Abe doesn't tell the potential client that the writing samples were written by Lisa. 

I can't describe the above scenario as anything but a fraud perpetuated against the potential client.

3. Having worked at three law firms early in my career, I find it hard to believe that, as a practical matter, "delegating the work doesn't mean abdicating the responsibility."  If an attorney can't spare 15-30 minutes per day to blog, then I doubt the attorney can spare 5-10 (or more) minutes per day to review his ghostwriter's posts before they are put online.  Of course, this goes to the question of how we define responsibility.  Last week it came to light (on Ben Cowgill's Legal Ethics blog, here) that a legal blogger was posting materials supplied by Nolo Press on his blog.  I would presume that Nolo does not allow these materials to be altered or changed by the attorney.  If my presumption is correct, then how can the attorney fulfill his "responsibility"?  Is it sufficient to review (but not alter in any way) the posts he purchases from Nolo?  That strikes me as no different from saying that the attorney's responsibility is fulfilled when he writes the check to Nolo.

I subscribed to Money magazine back in the go-go 90's, when it offered lots of investment tips.  Evidently the bursting of the tech bubble shook things up at the publication, since the new version of Money doesn't focus much on stocks and bonds.  I think that's a good thing, because the magazine now provides a lot of helpful information about maximizing your income and cutting expenses.  For instance, recent articles detail specific steps you can take to reduce energy costs and to take control of your credit score.

The April 2006 issue of Money arrived just a few days ago, and it has lots of goodies, including some articles that touch on estate planning and probate issues:

-an article on reverse mortgages, with a sidebar offering advice to those who inherit a house with a reverse mortgage;

-an article that discusses "What you need to ask yourself when you're asked to care for a loved one's children" after the loved one passes away; and

-an article on prenuptial agreements.

One downside to Money: it seems to have almost zero internet presence.  This appears to be the magazine's homepage, and it offers very little in the way of articles -- plus, the articles it does offer relate mostly to stocks and such.  That's a shame, since the new version of the magazine provides so much more.

Over the weekend I received an e-mail from a reader in Missouri, asking about time limitations and Will contests.  In Illinois, the rule is as follows:

Within 6 months after the admission to probate of a... will... any interested person may file a petition in the proceeding... to contest the validity of the will.

This rule is found in §8-1(a) of the Illinois Probate Act (755 ILCS 5/8-1).  Section 8-1(f) of the Illinois Probate Act applies the same rule to "[a]n action to set aside or contest the validity of a revocable inter vivos trust agreement or declaration of trust to which a legacy is provided by the settlor's will."  The practical upshot of these rules is fairly simple: if you don't file your Will or trust contest within the six-month period after the Will is admitted to probate, then your action is barred.

According to the reader (whose information I haven't verified), Missouri has the same six-month rule.

Basically, the reader wondered if the setting of a time limitation on a Will contest could "allow self interested parties... to cover up or not disclose something until after the deadline to contest has passed.  What protection is there in place should something substantial arise after the deadline has passed that [had it been known prior to the deadline] would have warranted filing a Will contest[?]"

Statutes of limitations are employed in probate because there's a public policy in favor of the speedy and orderly administration of estates.  Basically, the legislature has decided that we don't want a situation where the administration of a testate estate is completed (including the distribution of property to the Will's beneficiaries) and then, 2 -- or 5 or 10 -- years later, someone tries to undo that administration by filing a Will contest.  Not having a time limitation for Will contests could wreak havoc with our courts and with beneficiaries (who could potentially have to refund their inheritances). 

Of course, as the reader implies, having statutes of limitations for Will contests means that a person could be robbed of his or her inheritance if he or she doesn't file a Will contest within the six-month time period, and then discovers facts that suggest such a contest would have been successful.   Are there any ways of preventing this?  I can think of only one piece of advice:

BE VIGILANT

If you think someone is taking advantage of an elderly relative or friend, or think an elderly relative or friend can't make decisions for himself or herself anymore, do something about it. Besides producing good karma, spending time with an elderly relative or friend means that you should be able to tell if the person is incompetent or being unduly influenced, enabling you to get them help during their life.  If, after a person's death, you assert for the first time that the decedent wasn't able to make his or her own decisions or was being controlled by a third party, you will likely run into proof problems.  There's also a good chance that (fairly or unfairly) the attorney for the other side will attempt to portray you as greedy.

Today's New York Times has an interesting article (in the Arts & Leisure section) about Joan Kroc's $230 million gift to National Public Radio (NPR), and how the gift has changed that organization's culture and outlook.  (The article can be found here, although registration is required.)

Two points in the article (which was written by Jacques Steinberg) stood out to me:

1. The gift came as a surprise to NPR, which (presumably) means that Mrs. Kroc hadn't been in contact with NPR about making the gift.  I usually advise my clients who are inclined to make large charitable gifts that they may want to coordinate such gifts with the charity.  The main reason for such coordination is that it allows the client to make sure that the charity can handle the gift, and has a plan for its use.

2. Nina Totenberg (NPR's legal affairs correspondent) mentions one downside to the receipt of a large gift, stating that "My one fear is, people will think, 'We don't have to give.'"  Lots of charities struggle with this mindset -- a similar mindset often appears when donors are solicited to make planned gifts to charities that deal with social ills, and say something like "if you [the charity] do your job, won't this problem be eradicated before I die?"

Marian Boelson, of Evansville, Indiana, died in 2003 with a trust that left her IRAs, cars, and the "personal property" from her condo to her brother (Richard A. Baker), and almost everything else to the University of Southern Indiana.  The issue raised by Mr. Baker in litigation was how "personal property" should be defined.  Mr. Baker favored a broad definition, while the University obviously wanted a narrow one.  In most cases this question can and should be resolved by the actual language in the document, but this article (which provides a nice summary of the dispute) says a probate court magistrate initially found the dreaded "ambiguity in the wording." 

The Indiana Supreme Court has now ruled in the University's favor, employing one of the basic rules of document construction: if the document itself is ambiguous, look at extrinsic or external evidence to determine the intent of the person who executed it.  In reaching a decision in Mrs. Boelson's case, the Supreme Court "cited Boelson's own notes, the affidavit of her attorney and statements of her longtime companion in concluding Boelson intended to limit her brother's share to the IRAs, the vehicle and some personal effects."

As a part of my survey on probate mediation, I was planning a post on ADR (alternative dispute resolution) websites generally, with a focus on ADR blogs.  However, given that I'm new to the area of ADR, I thought it might be a bit silly (not to mention cheeky) for me to try to give an overview of the available resources.  Luckily someone with a lot of knowledge in the area -- Diane Levin of the excellent Online Guide to Mediation -- has prepared a directory of ADR blogs. Ms. Levin's introductory post on the topic is here; the actual directory can be found here.   Death and Taxes even gets a mention as being ADR friendly!

David Giacalone and I have been engaged in what I think is an interesting discussion about whether estate representatives should appear pro se (that is, without an attorney).  For some background, you might want to check out my March 13 post and March 14 post, and Mr. Giacalone's March 13 post.  Mr. Giacalone's most recent comment to my March 14 post is as follows:

You still have not answered the question. Now that most Americans can read and write, and computers and the internet make it easy to get them information, why should they have to go through lawyers, if (1) they don't want to, and/or (2) they have a relatively simple case that could readily be handled pro se if websites such as the one in Vermont existed for every probate court?

My answer to Mr. Giacalone's question is that they shouldn't have to.  I thought I clearly indicated this earlier in the week, when I said that judges shouldn't bar the door to pro se probate litigants. 

Where I think Mr. Giacalone and I diverge is on the question of whether it's a good idea for estate representatives to act without the counsel of an attorney.  I think it's often a mistake to do so, especially in estates where at least one beneficiary isn't the representative.  An estate representative owes a number of fiduciary duties to the beneficiaries of the estate, and I think there's a real danger that the representative will be ignorant of these duties, and act inappropriately.  In fact, the first contested case I ever handled as a sole practitioner involved a trustee (also an attorney!) who was commingling trust assets with his own assets, not investing trust assets, violating his duty of loyalty to the other beneficiary (his sister), etc.  In my work as a probate attorney, I continue to deal with these types of issues on an almost daily basis.

To tie this in with Mr. Giacalone's comment above, I would say that his point (1) is irrelevant.  The test shouldn't be whether or not the estate representative "wants" or doesn't want to engage a lawyer (unless the estate representative is the estate's only beneficiary, in which case he or she can do whatever he or she wants).  Rather, the question is whether (moving to his point (2)) the estate constitutes "a relatively simple case that could readily be handled pro se."  If the estate representative does a proper cost-benefit analysis and concludes that handling the estate pro se would do more for the beneficiaries than using an attorney, then I say godspeed.  If your analysis is correct, then you save the beneficiaries some money, which is obviously a good thing.  Of course, if your analysis is incorrect, you'll be seeing a probate attorney (either because you have to retain one to extricate you from your screw-up, or because the estate beneficiaries have retained one to sue you for breach of fiduciary duty).  I can't speak for other probate attorneys, but my fees when I step in to a contested situation typically exceed by quite a bit the fees I charge to probate a normal estate (which are generally in the $2,000 to $4,000 range).

Of course, a proper cost-benefit analysis can only be performed if an estate representative knows all the facts (i.e. knows what a good probate attorney would do and charge, and understands what will be involved in handling the estate pro se).   I would agree with Mr. Giacalone that, in general, the government doesn't do a very good job of disseminating probate information.  And it should be obvious that I believe in the dissemination of such information -- after all, I blog!  In the past year or so, I've posted 315 times (and counting) -- most of these posts convey information to the general public about the areas in which I practice.

But saying that the government needs to do a better job of getting this information to the public doesn't really address the much trickier issues that arise from this dissemination, including:

-To what extent should this dissemination occur? If I were to write a book on probate just in Cook County, Illinois, detailing exactly how to do it, step-by-step, that book might run 200 or more pages.  Should each county's website contain such a book?  I would argue that even Vermont's well-done probate website doesn't tell a representative everything that he or she needs to handle a probate estate.

-Who should do the disseminating, and in what format?   There are LOTS of ways for people to find out how to probate an estate -- if they want to.  For instance, in Cook County alone, there are sites like this blog, my regular site, the wonderful Reda Ciprian Magnone website, and Cary A. Lind's helpful site.  What if you're so inspired to learn about probate that you actually want to get out of your chair and go look at books?  The Cook County Law Library is open to the general public most days, and contains a wealth of information on probate.  I do most of my legal research there, and lots of members of the general public appear to as well.  And I haven't even mentioned the numerous books (available from Amazon.com or even free from your local library) that can teach you about the various aspects of probate.

The thing is, I don't have any real sense that groups like HALT have thought about these issues.  What I take away from probate reformer websites (and their e-mails or posted comments) are ideas like the following:

-most if not all probate attorneys are incompetent;

-probate is such a simple process that it can be learned quickly and easily by the layperson (see, e.g., the first comment to my March 14 post, which begins "[f]rankly,probate should not be difficult for a reaonably [sic] bright independent executor"); and 

-probate judges and attorneys are conspiring to prevent the dissemination of information about probate.

It's a little hard for me to take these types of ideas seriously, especially when I see very little support for them, and almost no discussion of either (a) concrete problems with the probate process or (b) proposed solutions for making the process work better.  Presumably that's why Mr. Giacalone began his March 13 post by stating that "[l]ast May, we challenged estate lawyers to help create or improve their States' online probate websites."  Ignoring the (previously mentioned) fact that a state's online probate website probably isn't the best place to look for government-supplied probate information, I'd issue a challenge right back to the reformers: what are your specific problems with the Illinois probate process?

Yesterday I wrote about probate judges (in Illinois and Texas) who prevent estate representatives from appearing before them pro se (that is, without an attorney).  David Giacalone wrote an interesting response on his f/k/a weblog, which can be found here.

Mr. Giacalone opens with a link to HALT, a legal reform organization that (according to a quote from the Wall Street Journal on HALT's website) "is waging a sophisticated state-to-state campaign to chip away at lawyers monopoly on the legal system."  Judging from the website, much of this campaign is focused on probate.

Mr. Giacalone cites with approval HALT's statement that "[p]robate is not the complex, intimidating process many people believe it to be. For years HALT has encouraged states to simplify their probate process- especially for small estate administration."  Yet I can't help but see the contradiction in these two sentences.  The probate process isn't complex, yet it needs to be simplified?

Admittedly, this is an area where I have to tread lightly -- I earn most of my living by handling the probate of estates.  But do I have an interest in (a) making or keeping the probate laws of Illinois as complex as possible and/or (b) preventing the public from having access to information on probate?  I would hope that's not the case, any more than a doctor has an interest in making sure his patients have treatment regimens that are overly complicated and/or don't have access to medical information. 

I would argue that I try to give the public access to information on probate via this blog.  (Do I have a duty to do so?  I wouldn't think so -- do I, as an officer of the court, have a duty to provide free legal services to people who can afford to pay for those services?)

I agree that probate is a complicated process -- I think of myself as a relatively smart individual, and I've been practicing in this area of law for almost ten years, yet I still learn new things almost every day.  Perhaps that's why I don't view my dissemination of probate-related information as aiding in my own obsolescence.  There's a lot to know, which is why I can't be too critical of HALT's rankings of states (see this pdf) on the basis of their probate website.  (Someone at HALT should be made aware that probate proceedings in Illinois take place at the county, rather than state, level.  They also haven't read about how Connecticut, which garners an A- in the rankings, is widely considered, by attorneys and normal citizens alike, to have the worst probate system in the country -- my post on that topic is here.)

Can probate be made simpler?  I don't know.  Some people see conspiracy in everything that's complex -- the question I always ask is, what purpose does the complexity serve?  I truly believe that guardianship and probate proceedings are expensive in large part because the court is doing its job in providing protection (to the ward in a guardianship; to the estate, its beneficiaries, and the decedent's wishes in a probate).  Like most things, probate and guardianships have positives and negatives -- these protections are the biggest positives that the court can offer.  And courts assume (as I think they have to) that each person is rational -- if you own all of your property in your own name at your death, it doesn't mean you were stupid, it just means that you wanted the protections afforded by a probate proceeding (and were willing to pay for them).

Reducing the cost of probate would, presumably, mean eliminating at least some of these protections.  The legislature occasionally decides to do that -- for instance, expensive and time-consuming guardianship proceedings can often be avoided these days via the use of a power of attorney.  But again, there are positives and negatives -- a power of attorney means no court supervision (which means an unscrupulous agent can empty out your bank accounts and be half-way to Barbados before you discover the problem). 

The concept of tradeoffs always seems foreign to legal reformers -- like Oscar Wilde's cynic, they know "the price of everything and the value of nothing."  They want their inheritance and they want it now and they want it cheaply and they better get the same court protections that existed in the past.  (Sounds like tax reformers, who want lower taxes and more fairness and less complexity and, presumably, a good-tasting, low-calorie banana split.) I wonder if probate reformers are willing to pay more in taxes to get the things they want?  My guess would be no. 

Back in August I complained about a number of blog marketing-related issues, including the notion that it's OK to hire someone to write your blog for you.  I hoped this wrongheaded idea would fade away pretty quickly, but it's been reintroduced in an article by Edward Poll (here) in this month's Law Practice Today.  Mr. Poll states the following (the emphasis is mine):

If you do decide to become a blogger, it's important to remember that you shouldn't work for your blog. Making frequent posts and answering dozens, or hundreds, of email comments, can take time. Let's say it's just two hours per workweek....

This is hugely expensive! The logical way to control the expense is hire someone to manage your blog. The expense is far less than the time spent updating (no matter how easy with TypePad or other blogging tools), which will take you away from other marketing activities or even from your practice. Delegation is a principle by which I live. I want to do those things that only I can do, like coaching, consulting and marketing for more work.

Mr. Poll doesn't come right out and say it, but isn't he encouraging attorneys to hire someone to write the posts that appear on their blogs?  After all, I would estimate that the large majority of the time I devote to my blog is spent writing posts -- answering e-mails and comments takes very little time.  But how does this idea fit with what Mr. Poll (or whoever he hired to write this column) wrote earlier?

Ultimately, blogs are a means of face-to-face conversation with a client or prospect when you can't meet them face-to-face. Blogs are informal, conversational, and show that you have something meaningful to say. They epitomize my own definition of marketing. I see it as the process by which we seek to persuade others of the merits of our beliefs.

If I don't write my posts, then a face-to-face conversation may be taking place, but it's between my client or prospective client and my ghostblogger -- that conversation doesn't involve me at all.  I think blogs make for good marketing because they show prospective clients who I am (in terms of both legal knowledge and personality).  If you use a ghostblogger, then prospective clients aren't learning anything about your legal knowledge or your personality.  And if you use a ghostblogger and don't disclose this fact to your blog's visitors, then you are also a liar.

Professor Gerry W. Beyer has been using his blog to write about whether a court can prevent an estate representative from appearing in court pro se (that is, without an attorney):

February 16, 2006: Court Mandates Use of Attorney

February 21, 2006: More Courts Mandate Use of Attorney

February 21, 2006: Prof. Hatfield Explains Why Attorney Cannot Be Required to Probate Will

I am the "Joel S." whose comment appears after Professor Beyer's February 16th post.  Interestingly enough, I was in probate court last week, and yet another Cook County judge informed yet another non-attorney petitioner that his petition could not go forward until he retained an attorney.

As I mentioned in my comment, not hiring an attorney is usually a bad idea, a money-saving plan that probably winds up costing the estate money.  There's also the issue of (judge and lawyer) time wasted in court by non-attorney petitioners who don't know what they're doing.

That being said, the question isn't whether you should hire an attorney to handle a probate but whether you must.  I see no reason why most (if not all) of Professor Hatfield's conclusions about this issue with respect to Texas also shouldn't apply to Illinois (even if it opens up the can of worms regarding whether -- and the extent to which -- a judge can or should give legal advice to the non-attorney petitioner). 

From a practice perspective, I'm particularly concerned about the professional responsibility angle -- as Professor Hatfield puts it:

... [R]emember that the unauthorized practice of law requires more than the 1 person (the pretend “attorney” and the “client”).  Alleging that an executor could be engaged in the unauthorized practice of law by appearing pro se alleges that there is more than “1 person” involved. I infer that the executor is in the “attorney” role and the beneficiaries of the estate are in the “client” role and that is how “unauthorized practice” is argued to arise here.  However, if that is the correct legal analysis... any lawyer representing the executor would then, by definition, also be representing the beneficiaries of the estate. 

In my engagement letters and other initial correspondence in probate matters, I make it very clear that I represent only the representative (executor or administrator) of the estate, and not the estate's beneficiaries.  In fact, I specifically tell representatives who are also estate beneficiaries that I am not representing them in their capacity as beneficiaries.  Have judges (in Cook County and other jurisdictions) decided this is not the case, and that I actually am representing estate beneficiaries? 

As a probate attorney, I was originally attracted to Charles Dickens' Bleak House because of its subject matter, which centers on a Will contest in the Court of Chancery.  Of course, Dickens' writing style -- especially the cleverly-drawn characters and the plot twists -- kept me reading, even when I wasn't sure whether I'd make it through the whole thing (the Penguin Classics edition I read was 989 pages, not including endnotes).

The main character, Esther Summerson, is raised by her godmother, who informs Esther that "Your mother... is your disgrace, and you were hers." (Chapter 3, page 30 -- all page references in this post are to the Penguin Classics edition mentioned above.)  After the godmother's death, Esther is taken into the home of John Jarndyce, who is a party to the long-running Chancery case of Jarndyce and Jarndyce.  (The name of Mr. Jarndyce's home gives the novel its title.) Esther is to serve as a companion to one of the wards in the case, Ada Clare.  Over the course of the novel, Esther does a lot of good deeds, contracts smallpox, learns the secret of her parentage, and gets involved in a love triangle with Mr. Jarndyce (a bit icky, given his fatherly relationship with her) and the handsome doctor Allan Woodcourt.

I think of the novel as a series of meditations regarding the relationship of various characters to property (especially via other characters).  The main example involves Richard Carstone, Ada's cousin and the other ward in Jarndye -- Richard becomes obsessed with the court case (and his expectancy of an inheritance), and his obsession destroys him.  Characters are also forced to make choices they otherwise wouldn't because of the debts they owe.  For instance, one character is "forced" to turn over private correspondence in order to avoid the ruin of his business and his best friend.

It's an understatement to say that Bleak House shows Dickens as having no love for lawyers or the Court of Chancery, which seems to function only for the benefit of the attorneys.  Besides Mr. Tulkinghorn, a lawyer and the villain of the piece, the lawyers we see are usually portrayed as emotionless (at least, when they aren't being compared to vampires).  Dickens has more (albeit grudging) affection for the nasty businessman Smallweed, who is probably the novel's funniest character.  Brimming with malevolence, the elderly, diabled Smallweed is usually seen either trying to hustle someone for money or shouting at his granddaughter to "shake me up, Judy."

The novel features quite a few mentions of probate issues, many of which still resonate today:

Chapter 9, page 143: As I discussed in this post, mentions a pet trust.

Chapter 15, pages 250-251: A character discusses a dispute over an advancement (a subject I covered here), explaining as follows:

My father (a farmer) made a will, and left his farm and stock, and so forth, to my mother, for her life.  After my mother's death, all was to come to me, except a legacy of three hundred pounds that I was then to pay my brother. My mother died.  My brother, some time afterwards, claimed his legacy. I, and some of my relatives, said that he had had a part of it already, in board and lodging, and some other things.... [n]o one disputed anything but whether part of that three hundred pounds had been already paid or not.

Chapter 33, page 529: After the death of a man named Krook, Smallweed (Krook's brother-in-law) comes forward and states that "[u]nless [Krook] left a will (which is not at all likely) I shall take out letters of administration."  This is exactly as it would be done today in Illinois, where a petition in a case of intestacy is for letters of administration.

Chapter 62, page 948: References a long-lost Will that supersedes a testator's other Wills, and whether this new Will was revoked by being burnt.  (Interestingly enough, under current Illinois law -- 755 ILCS 5/4-7 -- a Will can be revoked "by burning, cancelling, tearing or obliterating it by the testator himself or by some person in his presence and by his direction and consent.")

Dickens also addresses the more general issue of a lawyer's duty to his client.  Mr. Tulkinghorn is the attorney for Sir Leicester Dedlock, and harasses Sir Leicester's wife over a mystery in her past.  Is Mr. Tulkinghorn acting in Sir Leicester's best interest, or in his own?  Lady Dedlock describes Mr. Tulkinghorn to Esther as "mechanically faithful without attachment," and states that "[h]is calling is the acquisition of secrets, and the holding possession of such power as they give him, with no sharer or opponent in it." (Chapter 36, page 581) Mr. Tulkinghorn's manner of doing business eventually causes him to lose his life; we also find, in some touching passages near the novel's end, that Sir Leicester's response to his wife's mystery is much different from what we (or Mr. Tulkinghorn) might have expected.

Dickens' flights of fancy (in terms of plot) are occasionally hard to take.  For instance, the revelations about Esther's parentage -- which drive the last half of the book -- come to light only because of the extremely convenient spontaneous combustion (!) of one of the novel's minor characters.  In addition, everyone in the story appears to have a secret connection with everyone else, which can get a little ridiculous.  (Could that gruff former military man really be the long-lost son of the housekeeper?) But these are minor matters, and I highly recommend Bleak House.

It seems like I spend a lot of time trying to find online probate forms for counties in Chicagoland, so I decided to put them all in one place, here:

Cook County

DuPage County

Kane County (this is a search form -- to find probate forms, enter "P1-PR" in the number field and press enter)

Lake County

McHenry County

Will County (this is a main page -- to find probate forms, click "On-line Forms" in the top left corner of this page, and scroll down)

Estate planning is important for almost everyone, but it's especially important when a family business is involved.  Business succession planning is sort of like estate planning on steroids -- every issue is bigger and more unwieldy.  This article by Jim Wasserman of The Sacramento Bee does a very good job of touching on the major issues, such as:

-the older generation's fear of "losing power, control and their identities";

-the difficulty of finding family members who want to take over the farm; and

-the problems with treating family members (whether involved in farming operations or not) fairly.

The book mentioned in the article (Legacy By Design: Succession Planning for Agribusiness Owners, by Kevin Spafford) is available here.  And if you're looking for a great fictional take on succession planning, look no further than Jane Smiley's A Thousand Acres.

I'm compiling a survey of estate planning and probate-related mediation resources (mostly of the on-line variety), and will be posting the results here in the near future.  Here's my plan for this survey:

Part 1 (here): Articles about estate planning and probate-related mediation (if an article is available on-line, you can click on the word "link" following the article citation to access it)

Part 2 (here): Links to court probate mediation programs

Part 3 (today): Links to websites that relate to probate mediation

I view all of these parts as works in progress -- I'll be supplementing the lists as new items come to my attention.  If you think I'm missing a link, please let me know!

The Center for Resolution of Disputes - probate page (Cincinnati, Ohio)

The Law, Mediation and Arbitration Offices of Gerald F. Gerstenfeld (Encino, California attorney and mediator with a focus on estate planning, trusts and probate)

Gromala Mediation Service (Eureka, California mediator with a focus on estate planning and probate disputes)

Valerie J. Merritt, Attorney at Law (Pasadena, California attorney offering probate mediation services)

National Conflict Resolution Center - probate mediation page (San Diego, California)

Semmelman & Semmelman (Lake Forest, Illinois law firm offering probate mediation services)

Last Friday, I finished a two-week stint as a juror in the U.S. District Court of the Northern District of Illinois.  I'm know I'm overdue in finishing my probate mediation survey, but this seems like the appropriate time to discuss my jury duty, since it's still fresh in my mind.  What did I learn?  Five things, really:

1. Courts and attorneys take voir dire seriously.  I knew that attorneys are allowed to serve on juries, and I certainly wasn't looking to shirk my civic duty, but my answers to questions during voir dire made it clear that I had a (very) tangential connection to the case at issue.  Imagine my surprise at learning that all three of the law firms where I previously worked were somehow involved in the controversy at issue (which centered on Arthur Andersen LLP, Federal Insurance Company, and retirement benefit-related claims against Andersen brought by its retired partners). 

Although none of my former employers were representing clients at the actual trial, I would occasionally see or hear references to attorneys I knew or at least knew of.  Furthermore, the brother of a good friend of mine was a legal assistant for the defendants. 

The judge and attorneys considered my relationships and kept me on the jury, which makes sense -- I certainly wasn't more likely to rule in favor of or against either party because of these relationships (which is what I told the judge and the attorney, and what I truly believe).

2. Follow-up is important.  The case could be termed a "race to the bottom" in terms of competence (or lack thereof).   The policyholder took its time in getting claims to its insurer, and even tried to settle some claims without its insurer's input.  The policyholder's insurance broker and attorneys were essentially useless.  And the insurer spent most of its time trying not to respond to the claims it had received.

One of the parties in particular suffered from a major case of "ball's in your court"-itis.  In other words, if I want something off my desk, I ask you a small question, and then avoid following up with you (because an answer will mean that I have to put in more work).  If there's one thing I've learned in my professional career, it's that you can't assume competence.  If you ask a question and don't get a response, you have to ask again.  And again.  And again.  Until you receive an answer.

3. Attorneys can make really bad witnesses.  A number of attorneys took the stand, and mostly made themselves look like, well, attorneys.  "Intentionally obtuse" is what I wrote next to the testimony of one attorney who testified.  Every question posed to him by the other side was the dumbest question in the world, either because it was so simple to answer or because it was impossible to understand.  Of course, when this attorney was questioned by his own side, he became a font of information, launching into extensive narratives.  Juries see this kind of BS for what it is: an attempt to avoid answering questions truthfully through the use of semantics.

4. "Mediating" a jury deliberation is hard work.  After I was nominated to act as foreman of the jury, I told my fellow jurors that I would be happy to act on one condition: they needed to see me as a mediator, helping the 8 of us to reach agreement on the verdicts we had to render, and not as an attorney who can dispense legal advice or information.  Unfortunately, jury deliberation is different from mediation in one major aspect: I was also being asked to cast a vote.  As a result, I had to walk a thin line between expressing my own opinion and helping the jury as a whole reach a unanimous verdict.

5. Federal Judges Have Very Hard Jobs.  Judge Amy St. Eve presided over the trial.  Those of you who follow the news may know that Judge St. Eve spent Friday morning in an extremely well-publicized and controversial hearing (discussed here, among other places).  Friday morning was also when our jury reached its final verdicts (after about two days of deliberation).  I can't imagine having to handle a hearing on an alleged terrorist while also dealing with the parties (and jurors) in an insurance dispute.  I have to say that Judge St. Eve was never anything but courteous to us -- she even took the time to meet with us after the case was finished, to thank us for our service.