P R O B A T E   &   P R O P E R T Y
Nov/Dec 2004
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Practice Pointers Probate

Practice Pointers—Probate Editor: Diane Hubbard Kennedy, 4911 E. 56th Street, Indianapolis, IN 46220; d_kennedy@iquest.net.

Practice Pointers—Probate offers suggestions for improving estate planning and probate practice. The editors of Probate & Property welcome suggestions and contributions from readers.

Counselor at Law

Beyond serving as technicians, expected to know the latest tax law and to craft documents that will accomplish a client’s legal objectives, estate planning and administration attorneys are often called upon to serve as counselors in the broader sense. Although occasionally the request for counsel is overtly stated, more often the client may not realize that counsel is desired. This is the point at which lawyering ceases to be a science and becomes an art.

If a client is in crisis, the client will also be in pain. Attorneys should try to ease that pain when possible. At the time of death, sincere offers of support may be the best way to help. Some individuals want to discuss the circumstances surrounding a loved one’s death. Others may want to distance themselves from the event by focusing on the mechanics of the rituals that surround death. If consulted before the “arrangements,” it may be appropriate to accompany the family to the funeral home and to assist in funeral planning. If the relationship between the family and the lawyer is not close enough to warrant the attorney’s participation in the funeral arrangements, the lawyer may want to recommend that the family’s clergy help, particularly if there is concern that the family is too distraught to follow the decedent’s wishes or to make wise choices.

Often family members are numb immediately following a death and are only beginning to feel loss when the first visit is made to the lawyer. Accordingly, the primary family member may want to discuss the decedent’s last days and hours in detail, or may not wish to discuss or engage emotions in any manner. A sensitive attorney should follow the lead of the family in terms of the approach the attorney takes to fact-finding and obtaining the information necessary to open the estate. In some cases, a recommendation of professional counseling assistance or participation in a bereavement group may be best. In many situations, however, a sympathetic ear may be all that is needed and the greatest assistance a counselor can provide.

Crises arise in far more situations than at the time of death, of course. The attorney should understand why a client wants a particular type of plan and should not hesitate to tactfully probe for the reasons for any concerns that are not readily apparent. A client may want a share for one child held in trust longer than for the other children. Perhaps the child is mentally or physically disabled. Has the client made provision for ongoing physical care of this child? If not, why not? The attorney may know of resources in the community unknown to the client or may have seen how other families have handled this situation. A client may want a trust to extend for a longer than typical period. One of the client’s children may have a drug or alcohol abuse problem, but the client may not have considered treating each child differently.

Sometimes issues may be far beyond any “solutions” the attorney can propose. “Why did Mom love my brother more than me?” The lawyer may be able to explain that naming the brother as personal representative was an acknowledgment of the brother’s physical proximity, business experience, age, or other objective factor—not love. If the preference for a child is expressed by leaving more property to that child, an attorney may not be able to provide a suitable explanation, but the suggestion of possibilities may still help. “You are older, perhaps your mother felt that she had given you more over your lifetime.” “Your mother may have believed that you are able to take care of yourself better than your sibling is.” The attorney may not be able to console the client, but the client may be grateful for any rationale for the differing treatment. And that can make all the difference.