A Personal Note From Susana
I have spent a little over a year chairing a program with the National Academy of Elder Law Attorneys, (NAELA) Massachusetts, formed to help work through the problems our Probate Courts have and to improve the probate progress of a case through these courts.
Most people don’t realize that the Massachusetts Probate Court, where their estate will be accepted and managed following their death, takes jurisdiction over the estate depending upon where you last lived. For example, if you lived on Cape Cod your probate Court is Barnstable. Many of my clients live in Middlesex, Suffolk, Plymouth and Barnstable counties. Some are in Essex County and others are served elsewhere. So, I am filing Probates in all of those courts all the time.
There is a Probate legal Code, but generally it is interpreted as each court sees fit. Needless to say what one does for one court may be rejected by another. There is no uniformity from court to court. It is pretty frustrating for those clients who just “want the job done” and have all parties in agreement about what steps should be taken with their loved ones’ estates. They are still obliged to follow rules that are arcane at best, and reinterpreted by each court at worst. This means that even our best work with Accounts gets bounced back to us multiple times. We just try to work through this as best as we can.
Add to the problem of lack of uniformity, in interpreting the rules, our probate courts also suffer from understaffing. For example, there is one person who reviews all accounts that come in to Middlesex County. And there are thousands of accounts! All of the probate courts are generally understaffed, and what staff they have has in some instances received little or no training since the Pandemic hit.
The other issue with our probate courts for lawyers is that they don’t just handle probate matters. They also hear guardianship and conservatorship cases and divorces. The judges who are appointed may have worked in any one of these areas, in their civilian lives but not in all. So, a great divorce judge may be absolutely clueless about accounts that are filed for probate! Then the judges depend upon “judicial case managers” or clerks who may or may not be experienced and who may or may not be attorneys themselves.
After a year of grappling with the on-going issues in all probate courts, NAELA’s group, has achieved small steps to help the courts improve their services and expedite cases to move through the system. We all have made some headway by participating in “lawyer of the day” programs in some of the courts. This is an effort to help clients who walk off the street and who are not represented by an attorney. But often we are confronted with questions in areas where we don’t specialize. For example, I have not represented a divorce client in many years. I refer those cases to “Domestic Relations” attorneys when they call the office, and to a divorce manual if I am lawyer of the day. An important component of being lawyer of the day is to be in the same room with the clerks that may be managing your probate case. The hope is that we can get “something” done when the clerks realize we are there to help and not to threaten. Sometimes clients come to me wishing to avoid probate. Frankly, I’d like to avoid it too. It is time consuming and expensive. The best way to avoid probate is to have an estate plan utilizing trusts and other vehicles to pass assets to your loved ones outside of the probate process.
So, for those clients of mine who are in the middle of the process, I counsel you to “hang in there.” It will get done. But the best thing anyone can do is stay calm throughout and remember two things: “The seeming impossible just takes a little longer.” And here at Lannik Law, LLC we try to present the court with accounts that are as thorough as they can be. It does little good to “do the minimum” as one client asked me to do. The minimum will definitely be rejected.