The legal role of the probate lawyer is to admit the decedent’s will to probate, advise the newly appointed executor on their responsibilities and duties, help the executor inventory all of the assets of the decedent’s estate, settle debts and distribute the assets to the beneficiaries named in the will.  Of course, numerous legal issues may arise, which complicate this basis process, but that is the essential role of the probate lawyer in the conventional sense.

But there really is more.  In many cases, particularly an unexpected death, the probate lawyer must deal with a client who is emotionally devastated.  The client may be depressed, panicked or angry or some combination of all of the above, and the lawyer must understand this and know how to respond.  The probate process is necessary, but the client may not want to deal with it.  The lawyer must be compassionate, responsive and diligent.   For example, the client may be more comfortable meeting at home rather than the office.  Things have to be done, but how they are done can make all the difference.

As we watch Congress for clarity on tax reform, I am reminded of the Tom Petty song “The Waiting.”   Many clients are frozen, unwilling to do any planning.  However, the fact is tax law changes all of the time, and any “reform” today may be gone tomorrow.  Life and death go on.  The real reasons for planning transcend tax law.

You want to take care of your loved ones, and, if you have done well and have charitable goals, you want to leave something for the causes you care about.  The basic structure of a will is not going to change much even if the transfer tax is repealed.   You will still want to protect your loved ones from the uncertainties of this world, and possibly from themselves.  So trusts will still be used for protection from lawsuits and divorce, and to create a protected family resource for lending and entrepreneurship.

In addition, I have found that, while clients may be motivated a bit by tax reasons for gifting during life, they often enjoy watching their loved ones enjoy the life experiences those gifts bring.  The same is true for charitable giving.

Good planning should not be dependent on tax motivation.  Good planning should not wait for tax motivation.   So get on with it!

A colleague of mine, who was named as executor under the will, is faced with the not uncommon circumstance of managing the two children heirs who don’t like each other.  He can’t yet act for the estate, but there is the real possibility that things could escalate into an ugly and unfortunate situation.  In these situations it is imperative that the executor consult with counsel before communicating with the children.

For example, the named executor may need to block access to the home if the children are indicating a fight over personal property is possible.   A suggestion of a sharing arrangement might be advisable for a vacation rental property that both children want to access immediately.  Instructions may need to be given to the officers of a family business, if a child indicates he or she may disrupt the operation of the business.

Of course, the named executor should endeavor to admit the will to probate as soon as legally possible.  Babysitting disgruntled heirs is an occupational hazard of serving as executor.  It also may be helpful if the will has a no contest clause.