Pro Se Probate: Some Final Thoughts
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?
