March 26

How to choose a probate attorney in New York: overcoming the issue of trust

When a prospective client is hiring a probate attorney in New York the first thing I’ve noticed that is usually on my client’s minds is: do I trust this person? This is probably the most valid concern and clients have a duty to themselves to make sure one of the most important tenets to the attorney-client relationship is present.

Believe it or not, that is also on the attorney’s mind. As an attorney I get lied to every day in some sort of fashion. As a human being, I’d imagine you do as well. So, as much as you are feeling out your prospective attorney, I’d imagine they’re doing the same to you. Personally, I value good working relationships over money. When a client listens to the words I say, trusting those words and then chooses a path set before them contemplated in logic, law and the facts of the case, the attorney-client relationship is allowed to do what it’s meant to: allow me to actually help. Honesty from a client is going to enable me to be a more effective attorney who can anticipate possible speed bumps or roadblocks and help me produce better results for the client. I like getting good results. I imagine any prospective client likes them as well.

This obviously begs the question: how do I quickly come to a trusting relationship with my attorney?

I’ve found the easiest way is by word of mouth. If someone has worked with me before and refers me a friend or relative, then I know that the previous client a) thought I did a good job and b) trusts me enough to put me in their friend or relative’s hands. These are the greatest compliments I receive and the easiest relationships I usually have. Many times we can dive right into the issues because the trust boundary has already been overcome by my past relationship with the previous client. We merely just get to work. I also like getting to work.

Prospective clients that come from sources other than word of mouth encounter trust issues at a greater rate and it becomes necessary for a professional courting to take place. I’ve purposely been with my wife for 18 years because my courting days are well behind me. Yet, I understand the need for it and don’t mind playing to a point. I get it. You want to make sure your attorney is professionally competent enough to handle your case. You want to make sure your attorney is not going to just take your money with little or no result. You want to make sure the story you speak about with your attorney is going to remain in confidence. In essence, you want to make sure about the very thing I’m writing about: can I trust this person? I get it. So here is the weird, slightly illogical, but time-tested answer to that question: pay a consultation fee.

For example: I get a call about a contested probate issue with a plethora of issues and even further avenues of potential paths. The prospective client wants to explore these issues on a call or meeting, but does not want to pay a fee for the consultation. Sometimes, I offer free consults, but as of late those sometimes are getting less and less frequent. The reason is that a) I can’t give advice to non-clients as an attorney and b) I must value my time because my other clients are giving high value to it as well. The result of my “free consultations” is that they usually end up having very little substantive matter within them and people feel unsatisfied after. So, I’ve found that having a prospective client actually pay the consultation fee helps resolve the trust issue. They get to have a real conversation with me about their issues and the legal implications of those issues. They ask probing questions and I do my best to answer them or begin to find a route to those more complicated answers. They usually feel satisfied, even if the consultation was enough and they don’t need to retain me because there was a quick answer. In fact, they might even be happy because all it took was one meeting. I’m probably happy as well. I like solving problems. If it’s the start of a lengthier engagement, then I also begin to trust them and the story they are telling more because they are, using the old adage, “putting their money where their mouth is.” My takeaway here is evident: a prospective client who pays for a consult enhances one of the most substantial building blocks of the attorney-client relationship, trust, both for themselves and for the attorney.

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December 4

“I received a NY Notice of Probate in the mail. What is this?”

Once every other week I receive a phone call from a concerned party about receiving a Notice of Probate in the mail. We all know the real question that sparks this phonecall, but I’ve broken it down into five parts for added suspense.

I. What is a Notice of Probate?

Notice of Probate is explained in Surrogate’s Court Procedure Act (SCPA) § 1409. (1) Essentially it is a statutory formality that puts certain classes of people on notice that the decedent has died and that your name is listed somewhere in the will.

So, the question you really called for? Yes. You are named in the will if you receive a notice of probate. Does that mean what you want it to mean? Eh, please read “named” as literally as possible.

II. What do the terms that appear on the notice of probate actually mean? Legatee, devisee, trustee, guardian, executor, testator and successor terms defined. (2)

For the truly inquisitive I’ve placed some working definition of these terms in the footnotes. Most of them are archaic words that the law has never been able to let go of, and probably never will. I like to sum it up as simply as possible: legatees and devisees get stuff and trustees/guardians/executors do stuff. Don’t worry, the law doesn’t expect the doers to work for free though. They are eligible for compensation also. See SCPA §§ 2307, 2308, 2309.

Please note that on the Notice of Probate it will state what title you have, so you can begin to formulate a hypothesis for the most important question.

III. Am I going to receive money?

And here is the let down: it depends.

First off, is the estate solvent? Are there debts and liabilities that essentially negate the estate? If the debts plus the costs of administration are greater than the estate’s assets then no, you are not going to receive any money.

Secondly, what are you named in the will? There is no requirement that the will be sent along with a Notice of Probate, therefore you will probably be in the dark as to what the will states. It is impossible to know if you are receiving money without a copy of the will. I can play the “if this then that” game with you for 15 minutes, but we still won’t know for sure . You could be named solely as a successor executor. If that is the case you are probably not going to see any money. This leads up to our next question.

IV. Can I see a copy of the will?

Yes. A will is a public document that is accessible and it is possible to obtain a copy.

V. What do I do next?

Again this is another one of those questions where it just plainly depends. For example, if you are a specific legatee, you may just have to wait for Letters Testamentary to be issued to the executor and your bequest to be distributed. Feel free to contact me with any other questions.

Anthony Nigro is a Surrogate’s Court practitioner that primarily works out of the following counties: Westchester, Bronx, New York, Kings, Queens, Rockland, Orange, and Dutchess. Appointments can be set up by telephone, email or through his “Contact” page.

(1) “Before letters are issued there shall be filed in the court a notice…that the will has been offered for probate or probated, as the case may be. The notice…shall state whether such person is named or referred in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian…”

(2) legatee: any person designated to receive a transfer by will of personal property (SCPA § 103.33).

devisee: any person to whom real property is transferred by will. (SCPA § 103.13).

trustee: the person appointed, or required by law, to execute a trust (Blacks Law Dictionary).

guardian: A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs. (Blacks Law Dictionary).

testator: One who makes or has made a testament or will; one who dies leaving a will. (Blacks Law Dictionary).

executor: A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease (Blacks Law Dictionary).

successors: are those named in a will that will take the place of the initial parties named due to incapacity or death.

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