Do you remember the movie “My Cousin Vinny”? In that movie, two young men traveling through Alabama are mistakenly charged with a murder of a clerk at the “Sack N Suds”. One of the young men elects to go with the Public Defender, while the other relies on his cousin Vinny, a recent law school graduate from New York. The Public Defender looks the part and exudes confidence. However, the moment he opens his mouth in court, he reveals a major stammer and gives a disastrous opening statement. The lawyer’s explanation is that he was nervous. Not the experience and polished performance the young accused expected!
While “My Cousin Vinny” is a great comedy, it proves the point that you need to do your research before retaining a probate attorney to represent you in a matter before the probate court. Whether you need to obtain a guardianship over your parent, contest a will, or challenge a trustee, you should do some homework before you hire an attorney to represent you in this specialized field of law. A growing majority of clients find a probate attorney through online research. While this is becoming the predominant way to find a lawyer, it means that you likely do not know the attorney and do not have the benefit of a personal referral. To help you in this process, the following are some considerations before you hire a probate attorney:
Many Michigan attorneys practice in multiple areas of law. An attorney may combine a practice of criminal and civil cases, or divorce and bankruptcy. You can often see the broad practice of an attorney by visiting his or her website. Typically, the attorney will list 5-10 areas of practice. However, you should exercise caution before hiring a general practice attorney for your probate court case. The decline of some areas of the law means that general practice attorneys are more likely to try to take on a probate case. However, probate is a specialized area of the law with specific practice and procedure. It is easy for a general practice attorney to miss important forms and process that are second nature to attorneys who concentrate their practices in probate.
In order to obtain the best representation for your case, make it a priority to hire an attorney who only specializes in probate law. An attorney who only practices in probate and elder law matters will be familiar and comfortable with the myriad probate rules and procedures. A probate attorney will also save you money because he or she will have experience with the forms and pleadings necessary for a probate case. This means that your attorney does not expend fees learning how to draft a petition for guardianship or open a probate estate.
Back to “My Cousin Vinny”. There are some memorable scenes where Vinny, who is a true New Yorker, has no clue about basic procedure of the Alabama courtroom in which he is now defending his young cousin. Accordingly, he gets everything wrong, from his attire, to the procedure, much to the comedic anger of the Judge. Again, the lesson is that a local attorney will be the most knowledgeable about his or her local probate court.
Probate litigation is becoming more common. Beneficiaries of trusts or estates may need to go to court to obtain information from the fiduciary; a family member, caregiver or friend may have exerted undue influence over an elder; you may need to obtain guardianship or conservatorship over your parent. You will be best represented in these types of cases by a probate attorney who routinely practices in the probate court where your case is filed.
Probate courts in Michigan vary in their administrative practices and requirements from county to county. A probate attorney who is well known to the local probate court can give you informed advice you regarding the particular practices of the court. An attorney who regularly practices in front of the probate judge will also provide invaluable insight into the way the local probate judge views particular cases, the level of evidence required to prevail and the history of rulings by this particular judge. Finally, while a probate judge is, of course, impartial, the judge may give more credence to a probate attorney with whom he or she is familiar and knows is a credible and well-prepared attorney. Ask your potential probate attorney how much time he or she practices in front of the probate court in which your case will be filed.
In “My Cousin Vinny”, not only has Vinny never brought a case, he does not know the rules of evidence. His long-suffering fiancé, Mona Lisa Vito, has to educate him on criminal evidence. The upshot? Don’t assume that your attorney knows litigation.
A regular trust and estate planning attorney is not necessarily able to represent you in probate litigation. There are some very experienced and knowledgeable trust and estate planning attorneys who have never seen the inside of a probate courtroom. Probate litigation requires an attorney to have a thorough knowledge and familiarity with court rules, evidence and pre-trial discovery.
You should look for a probate attorney to have superior advocacy and courtroom skills. The ability with which your counsel presents your case and argues in front of a probate judge does make a difference in the success of your case. In addition, an experienced litigator will be able to establish strategies for you to prevail, through the use of discovery materials, experts, alternate dispute resolution processes and trial preparation. Make sure you ask your potential probate attorney how many cases he or she has had in probate court. It is also worthwhile asking if the attorney has experience with jury trials. While it is not common, parties in a probate case are entitled to ask for a jury trial. You do not want your attorney to be caught lacking if your opposing party makes an unexpected jury demand.
Probate litigation is often a stressful and emotional process. You may have suffered the recent loss of a loved one, family members may oppose each other over plans for a parent, siblings may fight over last-minutes changes to a parent’s estate plan or deed, you may have discovered financial exploitation of an elder relative by a new friend. In all of these situations, it is important to have an experienced attorney who can also offer compassion and patience to work with you in a stressful situation.
You will be spending a great deal of time talking to your attorney through the course of your probate matter. Do you really want a probate attorney who goes through the mechanics of your case but exhibits no sensitivity to your loss? It makes it much easier if your probate attorney can empathize and provide informed but sensitive guidance through the process. Make sure that you spend sufficient time during your interview process to gauge whether the potential attorney is the right fit for you.
While you may be a master of online research and want the convenience of a telephone consultation, nothing beats a face-to-face office consultation. There is so much information that you can gain from an in-person meeting. You can see if the attorney has friendly and knowledgable staff. You can look around the office and see if the law firm is a tidy and organized working environment. While a neat office is not dispositive of a good attorney, you may not want to hire the probate attorney whose desk and office are overflowing with piles of paper and files. If he or she can casually stack files on the floor, how confident are you that the attorney will keep your file organized?
Talking to the potential attorney will enable you to see how he or she presents and works though legal problems as well as family dynamics. In addition, you will be able to see how the attorney personally interacts with people, which is a good gauge of how he or she will act with opposing counsel and other parties through the duration of your case.
Finally, observe how much time the potential attorney is willing to give you to discuss your case. Typically, an attorney will offer a free consultation of between 30-60 minutes. Did the attorney review any e-mails or other information you provided before the consultation, does he or she seem distracted or impatient with your matter? Does the attorney appear to know the law and issues for which you are consulting? Does he or she offer a plan of action for your case? All of this information is valuable in deciding whether to hire a probate attorney.
Who books a hotel without first looking at the reviews on Trip Advisor? Want to buy a book on Amazon? go straight to the reviews. Attorneys are masters of communication and persuasion. A potential attorney will likely be able to sound very convincing on an initial telephone call or in a consultation. However, the best way to obtain confidence that you are hiring the right attorney is to look for client reviews or testimonials. A testimonial will often contain insights and information that you cannot obtain by simply talking to the potential attorney. It is also telling if an attorney has no reviews on his or her website.
Honestly it does not matter where your attorney went to law school 25 years ago. A potential attorney may have graduated Summa Cum Laude from Harvard Law School in 1990, but it won’t help you one bit if he or she has not kept up with probate law since then. A good way to get a sense of whether your potential attorney is up to date in his or her knowledge of probate is to look to see if he or she publishes legal knowledge on a regular basis. Go to the attorney’s website. Does he or she post regular blogposts? Does the attorney comment on new cases or up and coming areas of probate law? If so, it is a good indicator that this attorney tries to keep current with probate law developments. Does the potential attorney write articles for a state or local bar publication or present at bar events? Someone who has the credibility in his or her own state or county bar society is likely to have equal credibility with the probate court. Conversely, a solitary halfhearted blog post from 2015 is not necessarily going to instill confidence that the potential attorney is invested in keeping up with the law.
Finally, don’t be afraid to ask about fees. Your potential attorney may check every one of the above boxes. However, if he or she charges a stratospheric hourly rate, you may want to widen your search. Note that large firms are likely to charge the highest hourly rates, as opposed to a sole practitioner. While large firms may be able to command large sums of money, it does not necessarily mean that you are purchasing a better attorney. Large firms may be used to handling complex trusts, but you do not need to have a complex
Probate attorneys generally charge an hourly rate and do not charge a contingency fee, which is a percentage of the amount recovered. An experienced probate attorney will have no trouble in estimating the cost of a will contest or guardianship proceeding. It is important to exercise caution with regard to attorneys who may offer a much lower fee for a probate case. While an experienced probate attorney may charge a higher hourly rate, that attorney is likely to be more efficient with time than a general practice attorney who has not handled this particular area of the law before. Thus, while you may think you have a bargain, you may end up spending double the fees because of the attorney’s inexperience.
Suzanne R. Fanning is a probate attorney with over 22 years of experience. You are welcome to contact our office with any questions about probate.