How Did I get Here?

Civil Litigation

by Irene Daniel

You may be wondering why an estate planning attorney is pursuing lawsuits regarding agricultural issues, clearly outside of her stated area of practice and expertise. Well, a funny thing happened on my way to becoming a powerful civil and civil rights litigator. I got burned out on all the unattractive things about litigation; you know, all the distasteful episodes that good lawyer jokes are made of: the positively odious behavior of the lawyers involved, including sometimes not just the opposing counsel, but the conduct of my co-counsel as well; the lack of competent bench officers; clients whose expectations exceeded what is realistically possible; and the fact that, for the most part, it really is all about money. Justice is merely an occasional by-product of our legal system, I came to believe.
So I thought I could perhaps make myself useful by trying to keep people out of court. (This is still my goal.) I decided that an estate planning practice would provide me with an opportunity to use my education and skills to be of service to my community by helping people avoid having to go to court, at least probate court.
This idea came to me when, several years ago in the midst of my burn-out, I was contacted on more than one occasion by a friend of mine in the midst or tale-end of a bad probate case. Their parents had worked for decades, perhaps building a small business, purchasing a home, vehicles, maybe some investment property. There were lots of surviving siblings and no estate planning had been done.
Essentially, more often than not, the family ended fighting over everything. Tens of thousands of dollars and possibly years later, the family is in a colossal state of dis-function, many parties no longer on speaking terms; and much of the estate is wasted. Attorneys, however, can make a lot of money probating the estate.
Attorneys fees in probate court are statutorily set. The schedule for these fees can be found in California Probate Code § 10810(a), and roughly come to about 3% of the gross value of the estate. For example, statutory attorneys? fees for a $500,000 estate, equals $13,500. However, this does not include extraordinary (XO) fees, which the court will grant to attorneys who have to put extraordinary efforts to put the estate in order for the probate court. If no estate planning has been done, XO fees will most likely be requested by the attorney handling the case and most likely be granted by the court. The hourly rate most likely to be charged for XO fees is $250. Thus, that $13,500 figure will likely grow to somewhere between $15-20,000, depending upon all of the issues and/or parties involved.
But that's just the attorneys fees! The cost will also include filing fees and whatever other court costs are involved. The initial filing fee for a $500,000 estate is $485. That's just the filing fee. There may be additional fees and court costs, depending upon the complexity of the case and the willingness of the parties involved to work together. Much of the time in situations such as these, hurt feelings and deeply buried resentments present formidable obstacles to families working together due to breakdowns in communications that lead to a lack of trust. That usually means more work, and money, for the attorneys; which, of course, means less money for the estate and its heirs.
So, it's really up to you. Who do you want your estate to go to: a lawyer, who is most likely a stranger to you, or your family? If you are reading this and you have not done any estate planning, you represent the vast majority of us. Most attorneys haven't done any estate planning either, even some estate planning and probate attorneys! So don't feel guilty. You are not alone.
None of us likes to think about dying. But I have it on good authority that not one of us is getting outta here alive! The families I have been honored to assist with their estate planning needs have saved themselves a lot of time, money and angst. I get a tremendous feeling of satisfaction and joy when I see the serene and confident faces of the people leaving my office, who have just executed their estate planning documents. They can now go on with their lives, go on vacation, go sky-diving, whatever, with the peace of mind that comes from having all your ducks in a row, so to speak.
If it's peace of mind you're looking for, I look forward to helping you soon.