With advancements in medical care, families are faced with more complicated decisions concerning loved family members than ever and many are landing in probate court. Probate litigation is on the rise and it can be extremely stressful to people who suddenly find themselves battling family members.
Many, if not most, of us will be involved with the probate court at one time or another. The probate court hears cases involving elder care, wills, trusts, powers of attorney, guardianships (medical and financial supervision of a person who is physically disabled, mentally disabled or underage) and conservatorships (responsibility for the financial affairs of the disabled or underage person). This article will briefly explain what to do if you encounter a situation involving the probate court.
How a probate court case is initiated
A court case is initiated when someone files a petition. For instance, if you want to gain guardianship or conservatorship of your grandmother who has dementia, you will have to file a petition first. If someone other than you has filed a petition, you will receive 14 days notice of a court hearing (usually by mail). The notice of hearing will inform you of where and when the hearing will be held. It is important to take action upon receiving the notice if you object to the proposed action or if you want to be involved in the court’s decisions. Failure to take action can result in the court making decisions that will be difficult or impossible to change afterwards.
How to choose a lawyer
Before taking action, it’s very important to find the right lawyer. If necessary, interview multiple lawyers. Here’s what you should look for: 1) ability to delicately handle sensitive family relationships, 2) good presentation skills, including the ability to zealously advocate your position, and 3) ability to cover substantive law, court procedures, discovery, mediation, case evaluation, arbitration, settlement and trial.
How to take action
As soon as possible, it is a good idea to email or fax to your attorney any copies of documents you have received. This will allow him or her to obtain further information from the court and/or from the attorney that filed the court documents. If the matter is contested (disputed), a decision may not be made on the original court date. If this occurs, another date will be set for a contested hearing.
How to come to a resolution
Quite often, prior to a contested hearing, the court may conduct a pre-trial conference and order both parties to try to settle the matter without a court hearing via Alternative Dispute Resolution (ADR). You will need to meet with the attorney to give him or her full information so you can be properly represented at the ADR. To prepare for the meeting, gather all documents that you believe may be helpful to your attorney.
I often ask clients to prepare a chronological “timeline story” that will assist me in quickly assimilating the facts of the case. For example, if the case is a will contest in which there are allegations that “Dad” was not competent to sign a will, the “story” would include a family history including medical information and significant occurrences from a few years prior to the signing of the will until “Dad” passed away. If you would like a sample timeline history, feel free to email me and I’ll send it to you (with no obligation, of course).
The attorney will know the law and the procedures of the court but it is the client that knows the applicable facts. Getting those facts to your attorney is a key part of the process in properly presenting your case in litigation.
Probate litigation is an unfortunate part of our lives today. Our hope is that we can make it a little easier so you can get on with living your life.
For further information regarding these matters, please contact Mr. Buttiglieri at 248.740.5696 or via email.