I want to keep this thread alive a little while longer. Perhaps the dangers of passing away intestate (without a will)---and with a substantial estate at stake---will motivate someone reading this topic, and who hasnít bothered yet, to go to a lawyer for a will.
The gist of the matter is in the preceding posts so if anyone is curious, take a look. The case should be decided in a few months, and if this thread stays alive long enough Iíll post the particulars when we have a conclusion. So anyone interested can see just how messy and absurdly expensive these matters can get.
Regarding the question of a fair legal contingency fee...to make a truly long story short: at one time I would never have even considered advising my relatives to pay more than 10-12% of the net proceeds in legal fees. But after discussing the case with fourteen (thatís right, 14) attorneys, itís become painfully apparent that due to the complexity and FUBAR-nature of this case, itís going to wind up being closer to 25%. Which is truly, truly nauseating. Iím currently trying to work out the retainer details with a new attorney.
Iím keeping this topic alive because it might help someone in a similar situation.
When I originally posted this topic I hoped to hear from others who had gone through estate litigation proceedings---and specifically information on contingency fee percentages agreed upon by lawyer and client, especially those involving kinship hearings.
After speaking with more lawyers than I care to remember (at least 15), Iíve come up with the following information. Just finding a *competent and qualified* lawyer in this specialized field is a major undertaking, and something Iíll not get into presently. And the great majority of these attorneys will not even *consider* contingency fees. At least this has been my experience in the metropolitan NYC area.
In the course of finding an attorney, I interviewed several and the following numbers are based on the information I extracted (like pulling teeth) from theseÖ.people.
Anyway, assuming the client wishes to avoid hourly billing, and assuming the attorney will consider a contingency fee, only cases which prima facie appear very strong will be taken on. This seems rather obvious but sometimes the obvious is hard to see. So, if you do find a qualified and competent lawyer willing to take on your kinship hearing (or estate) case on a contingency basisÖwell, at the very least consider it a good sign.
Chances are, the earlier you hire legal representation the less youíll pay. And like it or notóand I, for one, donít---the following numbers are what Iíve come up with based on the several painful conversations with the lawyers I consulted.
Many attorneys cling to 33% as the only proper contingency fee and refuse to budge one iota, regardless of the apparent ease or difficulty involved in pursuing the clientsí interests. Depending upon the size of the estate, a range of 7-15% of the net assets recovered seems about right in most cases. This presumes no obvious and significant legal problems are apparent at the outset. Also that you retain legal representation as soon as possible, before the inevitable complications arise. Assuming a good retainer agreement, everyone is locked in at the agreed upon percentage. Bear in mind I spoke only with lawyers in the metropolitan NYC area.
If you put off the process of settling on legal representation too long, or hire a parade of attorneys, one by one, firing each one as they demonstrate incompetence (or worse), expect the contingency fee to be much higher when you finally do find the ďrightĒ lawyer. This is what happened to us. No matter what is agreed upon, there will always be additional legal fees. But a good retainer agreement will minimize this and is absolutely essential. The larger the estate, the more hangers-on and people chomping away at the pie.
In our case, everything that could go wrong, did. To make a long story only a little less long, our estate kinship litigation case in almost four and a half years old, and counting. I cannot believe itís come to this, but I feel fortunate to have found someone who has taken it on for a 25% contingency basis. I know with a fairly high degree of certainty that this fee would have been half this amount at most, if only things had been handled properly. Our case is probably the worst case scenario. We had to deal with incompetence, malpractice, but worst of all: stubborn and greedy relatives...MY relativesÖwho would not listen to common sense.
Hopefully, someone might benefit from this. If you need legal representation, secure it quickly. And show the retainer agreement to another attorney before signing it. Find someone in your family to handle the situation, and listen to him or her. If this is not possible, find/hire someone outside of your family to help.
Bumping to keep this thread going a bit longer, even though there's obviously little interest in it. Quite a bit has transpired since my last post. My reason for keeping this alive is it may spur at least one person who hasn't, into writing a will. Also: when the dust settles if anyone is interested I'll go into more detail in order to demonstrate just how painfully expensive failing to retain competent legal representation can be.
cga said: Bumping to keep this thread going a bit longer, even though there's obviously little interest in it. Quite a bit has transpired since my last post. My reason for keeping this alive is it may spur at least one person who hasn't, into writing a will. Also: when the dust settles if anyone is interested I'll go into more detail in order to demonstrate just how painfully expensive failing to retain competent legal representation can be. there is interest in it, once the post falls off the main pages it tends to get lost...pls do keep us updated!
Well, I promised to keep this topic alive a while longer so hereís another brief update before itís archived into oblivion. Iíll be surprised if this topic stays on the first page of the finance area very long, but at least it will survive a bit longer.
The lawyers finished presenting the paternal side of the kinship hearing yesterday. The maternal side will have to wait until August.
I estimate when all is said and done, if our side wins the legal fees will easily exceed half a million (in essence wasted) contingency dollars. And if we lose, the lawyers will have spent and lost at least $30k out of pocket, and at least $50k more in lost billable hours.
No one will ever know if the decedent just kept putting off writing a will until it was too late, without thinking of the consequences. OrĖand the more I think about it the more it seems possibleĖperhaps he had become so embittered that he didnít want anyone to have his estate without suffering through considerable emotional anguish. Perhaps the way he already had. Or perhaps he just wanted to be remembered in some way. Even this way.
Call me stubborn or call me naive (thereís virtually no interest in this topic), but I promised to see this through to its conclusion because it might someday help someone facing a similar situation, or just as importantly, illustrate the potential anguish caused by leaving this earth intestate.
Please read the preceding posts for the details if youíre interested; after all, there arenít that many.
The kinship hearing continued this week with the maternal (our) side coming up to bat. Witnesses from Europe and several others from the metropolitan NYC area testified. Not to mention a total of nine lawyers present.
Our lawyers said the hearing went ďwell.Ē The following is an excerpt from an e-mail I received from one of them, with naturally a few edits to protect the guilty.
ď...The attorney for the State said the Court may consider both our evidence and the other claimants' evidence as being credible, and, therefore, there is a possibility that neither side will prevail. He suggested a settlement between all parties. There were no settlement discussions at the hearing, because [our other lawyer] is wondering if your families would accept a settlement before proceeding....
Please discuss this and contact us. We are due back in Court [deleted]... Ē
Now I know for a fact that several attorneys are monitoring this topic. And Iím certainly not seeking legal advice; but this is a bizarre development. I wasn't aware a ďdealĒ could be made to divvy up contested estates. If the State's lawyer feels the Court will remain undecided, one would think he would wait it out and win the entire estate for the State. Equally strange is the fact that several months ago I was pondering a similar possibility (offering the other side part of the estate to withdraw). But our senior attorney categorically threw this out as being illegal.
Thanks to everyone who's taken the time to read through this topic.
cga said: it might someday help someone facing a similar situation, or just as importantly, illustrate the potential anguish caused by leaving this earth intestate..I hope this thread will illustrate that point.
Talking more or less to myself...but the end is now at last in sight. The relatives feign disinterest in a settlement but my money is on them caving in, thereby rewarding the false claimants and their (perhaps) sharper lawyers. Iím almost certain all the lawyers had a settlement offer in mind who knows how far back this ugly chain of events. Will probably know the details of any possible settlement offer within weeks, if not sooner.
Taking it right down to the bitter end would (according to our lawyers) result in either a complete victory, or more likely (they say) the State grabbing the entire estate. Were it up to me, Iíd *definitely* take it all the way to the bitter end, thereby at the very least depriving the false claimants and their lawyers (*and ours*) of dime one.
NY Courts Rules is interesting. See especially "Section 207.42: Report of estates not fully distributed" on timely filing and distribution of assets and "Section 207.45: Attorney's fees; fixation of compensation" that lays out NY rules including "...there shall be filed with the petition an affidavit of services which shall state when and by whom the attorney was retained; the terms of the retainer; the amount of compensation requested; whether the client has been consulted as to the fee requested; whether the client consents to the same or, if not, the extent of disagreement or nature of any controversy concerning the same..." among other stuff that seems to pertain to your family's case. Good luck! -Zer (gawd, do I love Google!) cga said: No probate fee guidelines seem to exist for my state, NY.... If more details are required: itís a large but not very complicated estate; the assets are well accounted for and under administration; several lawyers are already involved and are now demanding a much higher contingency fee than was originally agreed upon.
Thanks for looking that up, Zer92780, but the case is waaay beyond that point. If you read the entire thread you'll see what I mean. We now have a legitimate retainer that has been signed by everyone except one relative. And the Court will most likely (though it's not iron clad) subtract attorney fees from any possible distribution awarded to this one relative. The others have already signed on the dotted line.
Just had the longest telephone conversation I've ever had with an attorney: 64 minutes. It's now clear that our case is clearly the stronger (which the opposition freely concedes). However, because we cannot 100% knock them out of contention we will most likely have to accept a settlement offer. The rules of engagement are different in kinship hearings. One side must *totally* annihilate the other side in order to prevail. Otherwise, everyone risks losing the entire pie to a NYS fund devoted to unclaimed estate money.
Sorry I came so late to this thread. Are you SURE there is nothing you can use to emphasize the advantage taken of older people, speaking uncertain English, living far apart? Sounds as if it is a situation in which unethical lawyers MAY have taken advantage while dawdling or exerting pressure by threatening to drop the ball. Well, at least you now have some NY court rules to go by. -Zer
This is a very complicated case. I wish I could go into more detail, but on the one hand there's very little interest in it, and on the other hand I don't want to risk compromising the case. When the dust has settled I may write it all down.
There's no doubt that the other side knows perfectly well they're not legitimate heirs. Legitimate in the sense that they are not related to the decedent. The Court referee also understands this. But just enough doubt has been raised by their lawyer (a very, very good one) that the tiniest seed of doubt has been planted. And this is enough to produce a stalemate. And since this isn't horsehoes, being close is not good enough. You must prove beyond any doubt (not just beyond a reasonable doubt) that your side is the right side.
Our senior lawyer says that based on his (considerable) experience, our case is so strong that the other side will accept 20-30% of the pie, leaving the rest for us.
cga said: There's no doubt that the other side knows perfectly well they're not legitimate heirs. Legitimate in the sense that they are not related to the decedent. The Court referee also understands this. But just enough doubt has been raised by their lawyer (a very, very good one) that the tiniest seed of doubt has been planted. And this is enough to produce a stalemate. And since this isn't horsehoes, being close is not good enough. You must prove beyond any doubt (not just beyond a reasonable doubt) that your side is the right side.
Our senior lawyer says that based on his (considerable) experience, our case is so strong that the other side will accept 20-30% of the pie, leaving the rest for us.
Thanks for keeping this thread alive.
Thank you again for showing us the absurdities of these things, one would never imagine it unless we had heard this information. I hope that lots of people see this to know the importance of a will. Also, I suppose this will increase people's distaste for lawyers. It is sad though that our systems depend on lawyers to function, and that they are the main way to be compensated for many evils. Perhaps someday more wrongs can be righted by arbitration boards or types of insurance. Maybe someday, someone can invent a combination of a computer + MRI that can detect evil and we can filter out the bad lawyers. Despite the jokes, they aren't all that way, but the harm that one can do is immense.
Thanks wotech, and well said oxaca. I'll keep updating this thread.
I have had horrendous luck with lawyers. For example, many years ago I was the victim of a head on collision. The other driver was under the influence. My Parents were good friends with a big shot police officer in a medium sized city whose son was a VERY prominent attorney. He took the case on a contingency basis and I won, but it was settled out of court for what seemed like a small amount. A few years later it was front page news for weeks: this guy was involved with murders, drug dealing, you name it. He's still in prison. Anyone who's lived in the western NY area probably remembers who I'm talking about.
The lawyers representing us in this kinship case are excellent. I have no doubt of that. I (we) got lucky this time. They've convinced me that if we insist on the Court making the decision, it would result in a stalemate, and the State would receive the funds. Now I have to convince my relatives to accept what will probably turn out to be ~75% of the estate. It's just not worth going for broke for the remaining 25%.
I'd originally intended to keep this thread alive until some sort of resolution is reached (as promised). However, if something doesn't break relatively soon I may let it die.
The lawyers are not keeping us informed. Haven't heard from anyone for six weeks, even though I've made it clear I expect a report every 4-6 weeks--which doesnít seem unreasonable. I'm wondering if this is a psychological tactic, perhaps to exert psychological pressure before suggesting a settlement. Still, the legal team has a significant financial interest. If they ignore the case and if our side loses for whatever reason, our attorneys get nothing and effectively kiss their out of pocket expenses and time goodbye. Not to mention an upper six figure pay day.
I may call the Court but I'm guessing they'll just tell me to get lost.
I'm keeping this thread going for two reasons. First because I promised I would until the bitter end, though it's dragging on so long I may have to renege on that promise. But hopefully not. And two, as a real life example and warning.
I'm *very happy* to think that a FW member or two may have benefitted from reading this thread. If just one or two (hopefully more) people take the first step or two towards making arrangements for their estate while it's still possible--then updating this thread through thick and thin will have been worthwhile.
>>> 4-6 weeks is like "next day air" when it comes to probate matters. Its definitely not unusual, things often dont happen for MONTHS at a time. >>>
Yes, I appreciate that painful fact. This case remains unsettled for well over five years. And counting. So we know how slow the wheels of justice (civil, too) can turn.
However, the last time I spoke with one of our lawyers, he assured me that we would be receiving a settlement offer any day. We're in the end game now. I don't expect to hear from them every other day or every other week. But taking everything into consideration, I think a brief e-mail or phone message every six weeks or so is a reasonable expectation. Even if just to let me know things are on hold. I think I deserve and, frankly, I expect a little more consideration.
Whatís the record for the oldest ďactiveĒ Finance thread?
Not only is this case not moving forward, it appears to have slipped into neutral, with reverse just around the corner. Itís fairly obvious both sides have given up going for a win, and are jockeying for position leading up to a settlement offer, which will be doomed from the start because one of the heirs will not budge. This has confounded everyone, especially the lawyers. The fact that his one vote has brought everything to a screeching halt is almost comical.
I canít believe it myself, but Iím actually beginning to feel sorry for these poor lawyers ó who are basically playing a game of chicken. They say a stalemate is inevitable. In which case Big Brother gets every penny. My money is now on Big Brother.
cga said: Whatís the record for the oldest ďactiveĒ Finance thread?
. Itís fairly obvious both sides have given up going for a win, and are jockeying for position leading up to a settlement offer, which will be doomed from the start because one of the heirs will not budge. the first thread stuck at the top of ths forum is pretty old (from 2001).
Intransigence till the last minute is a tried and true strategy - if the stubborn heir is represented by counsel, they will likely be advised to capitulate. All these attys working on contingency need to be paid. if they are unrepresented, good luck.
Everyone on our side, including the stubborn heir, is represented by two attorneys, a husband/wife practice. Everyone on the other side is represented by a single attorney, who is a partner in a medium sized practice. All the lawyers want to settle, and except for the one stubborn potential distributee, all the heirs want to at least be given the opportunity to consider a settlement.
Our sideís lawyers are above average, but the other sideís is pretty much first rate.
If we lose, our lawyers lose a mid six-figure plus payday, not to mention a significant amount of out of pocket expenses, and time.
I proposed DNA testing quite a while ago, but was told this particular Court rarely agrees to exhumation. I find this difficult to believe. Identigene informed me that a legally valid Y chromosome test is definitely possible. This was after I explained the genealogy. Of course settling this the easy way (DNA testing) makes too much sense and would be so much less complicated....that the chances of it coming about are minuscule.
But you donít understand. Weíve all tried to persuade him. If you mean pay him off to go along...no we havenít tried that yet. The guy is a certifiable lunatic. Before signing on with us two lawyers previously retained by him walked away because they couldnít deal with him. Heís verbally abusive.
To get an idea of the depth of his conviction---his paternal side of the family would split their half of any possible distributions into fewer pieces of the pie than our maternal half. Which means his cut alone would be more than double any one of the maternal distributeeís. So heís willing to sacrifice (a lot of) money for pride. And heís not even that well off. While this would normally be an admirable trait, itís killing everyone associated with this case.
I've been party to civil proceedings in which one of the other parties was periodically psychotic and was legally certified. Wasn't much better when he was on his meds.
States' legal ethics rules make it all too convenient for attorneys who accurately identify such clients as a treasure trove ... the attorney can just hide behind the requirement that they do exactly what their client requests regardless of whether it is in the client's best interests or not.
Especially for an attorney in a medium or larger firm, such a client represents a nice annuity. And an easy place to dump billable hours. Or to bill out senior associate hours for stuff that normally would be paralegal work or just handled with a courtesy call.
I'd go so far as to say 4-6 months is like next day air when it comes to probate matters if one of the parties is psychotic.
I wish I could say I've seen these kinds of things resolved by anything other than the attorney fees depleting the assets. Sorry.
What little legal interaction I have had greatly improved once I wrote a letter documenting my communication expectations. If that doesn't get a good response then presumably the State Bar may have something to say about an attorney that doesn't communicate with his client.
Just a thinking out loud point, but if you cannot exhume the relative in question is the second best thing for the heirs to all be tested looking for someone missing the other's matching markers? If nothing else would someone refusing to take such a test have a weaker bargaining position?
Given the size of the estate, its fastly shrinking nature, and your comments about your lawyers not being the best I would seriously consider spending a couple grand or so for an independent lawyer review of the case. This could give you some peace of mind about the case direction and/or a couple of new ideas about how to proceed. You could either look for yet another new lawyer to do such a review or take the second place choice from you earlier lawyer hunt. Sure a couple of grand is real money. However, if it gives you the faith in your present lawyer to hang in there it could be the best money you ever spent. Or, it could let you know you might need to cut your losses and push hard for a settlement now before all the money is gone.
Normally I would have replied quicker (especially since this thread, understandably, gets little enough action), but something unrelated to this topic delayed my reply.
Our lawyers are on a contingency basis. They have not seen dime one from us. If we lose they get nothing. If we win they get 25%, which I fully realize is an absurdly high percentage considering the size of this estate. But that's another long story for another day. Since the crazy heir is on our side it wouldn't make much sense for our lawyers to drag this out, since they'd just be wasting their own time and money.
I agree with just about all of your points.
Frankly, I'm not sure our lawyers would technically be considered non-communicative. Since the case is, indeed, proceeding at a snail's pace our lawyers could (with some justification) claim since there's nothing new to report, they can't be blaimed for not keeping in touch. I have asked one of our lawyers to send me a brief e-mail at least once every six weeks, even if he's got nothing new to report. He more or less agreed, but hasn't kept his word.
>>> Just a thinking out loud point, but if you cannot exhume the relative in question is the second best thing for the heirs to all be tested looking for someone missing the other's matching markers? If nothing else would someone refusing to take such a test have a weaker bargaining position? >>>
That's an interesting idea. A very interesting one. I don't know if the court would consider this evidentiary, but I'm going to run this idea by the lawyers. Will let you know if anything comes of it.
Actually, our lawyers aren't bad. They're pretty good. It's just that the other guy's better. The estate is not shrinking. Except for about about $125k in legal fees mysteriously paid to the state's attorney (which the guardian ad litem of all people discoverd and complained about!), the rest of the estate remains untouched and is supposedly slowly increasing.
I've considered a second opinion from another lawyer several times, and actually spoke with a couple of lawyers about it. This case has become so complex now, however, that I'm sure it would take at least $5k for a new lawyer to properly look into it. It would probably still be money well spent. If things don't start moving soon I may take it upon myself to go this route.
>>>Or, it could let you know you might need to cut your losses and push hard for a settlement now before all the money is gone. >>>
The only one on our side opposed to at least considering a settlement offer is the problem heir. Since he won't play ball, there is no way to proceed in that direction. As for the money being gone, that will happen only if the estate is awarded to the other side, or if it the case results in a stalemate. The lawyers cannot touch any of the money until the case is settled in either our favor or the opposition's. How the above mentioned ~$125k in legal fees made its way to the state's attorney is an unsolved mystery which I expect will be solved, and corrected, before the dust settles.
The Court has still not ruled, but a stalemate is now almost inevitable. At that point, and according to our principal lawyer, a withdrawal proceeding would be the next step. This would prolong the case until the end of the year (at least) and give us time to present additional evidence. Our problem heir is holding fast. Nothing on this earth will budge him. He's been verbally abusive, especially to our lawyers, but after all, what can they do?
I discussed the DNA evidence angle with the lawyers. They promised to look into it, but I'm not holding my breath.
The lawyers informed us the guardian ad litem (the attorney representing all unknown heirs of the decedent) just submitted a bill for $38,000. He's billing the estate for 110 hours. And we're apparently tacitly expected to agree. This fee was never mentioned. The lawyers want our comments and questions. First thing that comes to mind is where is the petroleum jelly.
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