I’ve been a practicing lawyer in Scottsdale for over 30 years and I have never witnessed a fire-storm like the rage that has engulfed the probate system in the past two years.
I’d like to bring some sanity to the story and suggest a sensible solution.
If you haven’t read the horrible stories or the outrage generated by the current probate system you can catch up on the horror here, at AZCentral.com. The stories you will read here are indeed sensational and terrible stories. Most of them involve lawyers who are personally known to me as caring competent lawyers, and who were tangled up in difficult cases or inadequate safeguards and procedures. The cases feature over-reaching by professionals, inability of the courts to provide adequate supervision, and victims and their families who (for various reasons) simply failed to plan.
Before you read and join in the hysteria, let me give a little bit of background: the entire probate process is an extremely emotional and technical exercise, which requires interaction between laypeople and professionals, with a system that tries to be effective for all cases—from the very small to the very large. Lapses in the conduct of the administration in which individual cases are conducted, the frail nature of the system, and its inability to provide adequate oversight show the system at its worst.
When a reporter tells a story of a client being charged several hundred dollars to cancel magazine subscriptions you aren’t necessarily getting the entire story. You may get a quick impression of the frustration and final outcome, but you don’t get to see how the story actually unfolded. While the fiduciary may have thought one phone call would suffice, the actual process could entail a determination of whether another family member wanted the subscription, a flurry of messages and return calls, file reviews, etc. Suddenly what should have been a simple quick solution has mushroomed into a nightmare. Multiply by this each step in the probate process and it is truly a catastrophic handling of the case.
But if you are outraged by these stories (and there are plenty of reasons to be outraged,) remember that you have a choice. There are many competent, ethical lawyers out there, and many equally competent and compassionate private fiduciaries; but even the best lawyers and fiduciaries can’t help if the clients have not adequately prepared for the end of life struggle.
There simply is no substitute for an adequate estate plan. Readers must know the difference between having just a will or a trust, or creating a whole estate plan.
Prospective clients ask whether they need a Will or a trust and what is the difference. The real question should be “what is an estate plan?” Just having a Will or a trust and financial and health care powers of attorney is not a complete plan. Today, most assets can pass to beneficiaries without going through probate, but they won’t necessarily pass to the people you want, the way you want, when you want, unless you have created a thoughtful plan. And those assets may not even get to the transfer stage if consumed during the end of life process by expenses, private fiduciaries, and lawyers. Then when the remaining assets do pass to beneficiaries, if the plan has not been carefully constructed the assets in an inadvertent plan will be unnecessarily exposed to the creditors and spendthrift habits of the beneficiaries.
Because a Will or a trust is just a tool, the emphasis in my practice is on The Plan and how those tools will be used. Dwight D. Eisenhower said that while plans are useless, planning is indispensable. The important work is understanding the pitfalls likely to waylay assets in the end of life process, and empowering your family and professionals to address your plans in an ethical way, so that the end result can be as close to what you intend as possible.
If you want to avoid your legacy becoming a sorrowful story of drained assets and battling distant heirs, call me today and get started on the planning process. If you know anyone who wants the peace of mind that they have a plan that works, I welcome referrals.