Dec. 20, 2017 – “’Tis impossible to be sure of anything but death and taxes.”1
Much less certain, unfortunately, is whether the legal matters that follow upon a person’s death will be handled adequately.
You might hesitate to take on a probate representation if you haven’t done such cases before. But even if you don’t focus your law practice on estate planning and administration, you can be the lawyer who earns the gratitude of family members, friends, or co-workers when a loved one dies by responding with compassion, speed, and thoroughness.
The Wisconsin Probate System Forms and Procedures Handbook from State Bar of Wisconsin PINNACLE©, recently supplemented in spring 2017, takes you step-by-step through the probate process.
Whether from inexperience or lack of comfort with death, a lawyer might be wary of handling probate matters. The Handbook anticipates this and takes readers gently into the process.
Take the First Steps
The first duties of a lawyer helping a deceased person’s next-of-kin occur even before the initial client meeting. Depending on when the lawyer is contacted on the estate’s behalf, immediate duties – as noted in the Handbook – include examining the decedent’s will to see if it contains preferences regarding burial, as well as helping to arrange for disposal of the body, notification of relatives and friends, and a funeral or memorial service.
The next step is to meet with the family or personal representative. The Handbook outlines the topics that should be covered at this meeting: the probate process, the family’s immediate financial needs, possible conflicts of interest for the spouse or partner if appointed personal representative, the scope of the attorney-client relationship, attorney fees, and the decedent’s assets and debts.
Clarify the Scope of the Lawyer-Client Relationship
There are two aspects to the scope of the lawyer-client relationship in the probate context.
The first is the “who” – that is, who is being represented and in what capacity. As discussed in section 2.5 of the Handbook, the identity of the client might confuse the individuals who approach the lawyer for assistance with handling an estate, so the lawyer must take care to explain:
… that the attorney will be representing the personal representative in his or her capacity as a representative for decedent’s estate, and not in his or her individual capacity [and] that the personal representative’s ultimate duty is to administer the estate for the benefit of all beneficiaries, and that the attorney will not represent those beneficiaries.
The second aspect of scope is the “what.” Although it’s best for the lawyer to approach a probate case with the expectation of handling everything (and thus with the ability to do so), probate law is an area more amenable than some to limited-scope representation (retention of and payment to the lawyer only for certain tasks, with the rest left to the personal representative). In the latter situation, the lawyer must comply with SCR 20:1.2(c), which allows a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
Choose the Proper Procedure
Chapter 3 of the Handbook sums up the choice between informal probate (an administrative proceeding before the probate registrar) and formal probate:
The most important thing to keep in mind when using informal administration is that it is designed for an estate in which dispute resolution is not needed. If an issue will likely be litigated, formal proceedings are preferable.
Chapter 4 explains when to choose formal probate:
The most common reason is to effectively manage the estate’s administration when a contest is expected over the decedent’s will. Formal probate procedures are usually called for when the personal representative knows that the beneficiaries are argumentative with each other or the personal representative. Sometimes the assets of an estate dictate that formal proceedings be used. If the estate will have to provide an allowance to support the decedent’s family, formal proceedings may be more appropriate.
Use the Proper Forms
Don’t be fooled by the term “informal" - it doesn’t mean by a wink and a handshake in the probate context.
The number of necessary forms for informal and formal probate may appear daunting at first glance. But the Handbook’s authors and reviewers – Dean Stange, Jennifer D’Amato, Jessica King, and Peter Wyant – clearly and concisely explain what each form does, when it is necessary to use them, and to whom requests for information or documentation must be sent and forms submitted.
For example, what is a “proof of heirship”? The Handbook explains its purpose (identifying interested persons), instructs the lawyer how to fill out the form (answer only relevant questions), and indicates who should receive the form (the probate registrar, the personal representative, and the firm’s file for the matter).
How about the “notice to creditors”? The Handbook explains where and how it must be published, from whom information is provided for the notice, and that copies of the notice must be sent to creditors.
These are just two of the dozens of forms, included in the Handbook in print or digital formats, required for some or all probate proceedings.
The forms and accompanying commentary and instructions are arranged by order of use in a typical case and are also indexed alphabetically (in three categories: court-approved, miscellaneous, and letters).
The Handbook includes a subject index and a glossary as well.
How to Order
Wisconsin Probate System Forms and Procedures Handbook is available both in print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers. Electronic forms from the book are available online to print book owners and to Books UnBound subscribers.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing).
For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
1 This immortal saying, often attributed to Benjamin Franklin, actually was made by Christopher Bullock in 1716.