Complicated Probate Cases – With Associate Attorney Janki Patel

Speakers: Maritess Bott and Janki Patel

Maritess:

Hello everyone. Welcome to our podcast. My name is Maritess Bott, and we are here with our associate attorney Janki Patel. I believe we are going to talk a little bit today about a couple of complicated probate cases that we’re dealing with. It would be good to hear about them so you can see what types of complications actually happen when people pass away and things aren’t properly set up.

First of all, welcome Janki.

Janki:

Thank you, thank you.

Maritess:

Why don’t you go ahead and just give us a short introduction about you?

Janki:

Well, thank you, Maritess. My name is Janki Patel. I recently joined Bott & Associates back in February. I graduated law school back in 2020—a rough time for a lot of us—that was during COVID. My passion for law brought me to Bott & Associates. I knew I wanted to do estate planning and make a bigger impact, and here I am. I’m very grateful to be here.

Maritess:

Awesome. So glad to have you here. I know that you kind of jumped right in and did some court calls for our firm, met with some judges, and all of that. I think what would be good is to go over two of the cases that are a little more complicated than we had anticipated.

For everyone who’s listening or watching this, as an introduction: when you have a case where someone has died and you give us all the data and information, we’re not even sure how complicated it gets until we uncover some things or go to court. You never know. I always say it’s good to have an open mind every time you have a case, whether it’s estate administration, probate, or trust administration.

We’ll start with a case we’re going to call John Doe. John Doe is the person who died in the first case, where there was a surviving spouse—Jane Doe—and then children from a previous marriage.

Let’s pretend the daughter is Susan. So John and Jane Doe: we have a surviving spouse, Jane Doe, and Susan as the surviving daughter from a previous marriage. They came to us and said their dad died. They were always in the meetings together. I believe at first we thought, “This should be fairly straightforward,” if that’s what you recall as well. But then the complications started pretty early on, even before we opened the estate.

Why don’t you share a little bit about what you noticed in the meetings that transpired after the first one?

Janki:

Thank you for the summary, Maritess. Initially, it looked like a happy, good, jolly family. But as soon as we started getting the court documents filed and the estate was opened, that’s when we started to see the complexities of their relationship.

Susan and Jane Doe are both co-administrators. As co-administrators, they have to make decisions together. One cannot make a decision alone. That was explained early on. They said, “Oh, we get along, it’s fine,” and we said, “If there’s no issue between the two of you, this is what we’ll do.”

Now, as the court case is progressing, there are matters that need to be handled before we can close the estate or move forward. There are lots of disagreements. “This was not my understanding prior to our call.” It turns into a lot of counseling that we’re doing on the call, as opposed to actual resolutions. That was not expected.

It’s hard to gauge during those initial meetings. It looks pretty straightforward, but after the letters of office are issued, things start to get very complex when we’re trying to get answers from clients.

Maritess:

Yeah, and I think the root of the problem, from what I remember, is that they mistrust each other. Is that a good way to describe it?

Janki:

Yes, and this is very common in blended families. Maybe the daughter wasn’t really that fond of the stepmother—whatever that relationship is. Then the money is there, and now we have to make decisions, distribute, figure it out.

I think each of them thinks there’s more money than there really is. After reviewing everything, there really isn’t. It’s not a huge estate.

Maritess:

Not a big estate. It’s being divided between, I believe, six parties. But there are lots of debts as well, and it looks like one or the other is always unaware of them.

Janki:

It gets complicated. You’d like to keep an open and honest relationship and conversation every time you have a meeting between all parties. But lately, we’re seeing that what used to be three parties—the attorneys trying to resolve issues and the administrators—is now becoming a situation where the administrators are not on the same page, or they’re withholding information.

It becomes complicated because we need to answer to the judge. We need to see how we can move forward, pay off debts, pay off creditors and claims. It becomes hard when people are trying to beat the system. There’s no way around it.

Maritess:

There really isn’t. When there’s mistrust and you’re trying to help and advise them to be transparent, what tends to happen is we’ll hear one person say one thing, and the other says something else.

As attorneys, we have to be neutral. We represent the estate and both parties. We can’t hide secrets. We have to say, “Here are all the claims. Here are all the assets,” and whatever is left over is what we’re trying to distribute.

What do you suggest when people start getting those phone calls from creditors? It’s usually medical bills or credit cards. You never thought the decedent had all these credit cards, and all of a sudden, we’re getting all these letters and phone calls.

Janki:

That’s a great question. We are always asked this question every single time we’re having a meeting with a client, and my biggest thing that I say is, let’s not foresee things that are not here yet. People will start calling—companies will start. They’re like vultures. They’ll come and attack whenever they get a chance.

But you open up the court documents, the court portal, where you can see there is no claim filed. That medical bill saying, “Hey, you owe me $50,000,” is as good as your neighbor saying, “Hey, this person who passed owed me $10,000.” Where’s the proof? Where is the claim? We have an open court case. It’s wise to come file it in court. Let the judge decide whether it’s a valid claim. If it is, then we’ll discuss that in court.

I always tell my clients, let’s not sit here and have anxiety or panic over baseless claims—because it’s baseless until it’s in court.

Maritess:

Yeah, and what we find is the clients just freaking out. They get those phone calls constantly. They’re not going to let up. They’re just going to keep calling and sending letters.

But in our world, it’s only really valid once the claim is filed with the probate estate. In a way, I tell clients it’s actually good to have a probate estate, because now it’s out in the open and we can eventually close the estate—and no other claims can come out. It gives the process a finite resolution once the estate is closed.

We’re required to keep it open for six months. Then I tell clients, if there’s multiple letters and lots of different creditors, let’s close as soon as possible. It’s not that we’re trying to dodge people—it’s more that they know the process. They know the formality of the court case. They should act on their end; we’re not going to tell them to do so.

What do you think, for this situation—had we met them before the decedent passed—what should have been done? What could we have guided them to do better?

Janki:

Definitely would have advised having a trust in place. It would have clarified the decedent’s intent—because that’s what we’re constantly hearing. But for us, that’s as good as hearsay. The world doesn’t know. It’s not written down, and it’s baseless.

If there was a trust in place, where the decedent stated, “These are my wishes. I know I’m with a new wife. I have children from my first marriage. This is what I wish for them to have,” it would have avoided conflict. It would have avoided probate, first off, but more importantly, it would have avoided the conflict we’re having now.

I feel like this matter is going to be dragged on, because we have two parties who should be one. They should be agreeing on everything, and they’re not seeing eye to eye.

Having a trust would have laid out the decedent’s wishes, instead of us hearing from the stepchildren, “Oh my God, this is what my dad wanted,” and then, “Oh my God, no, this is not what he told me.”

Maritess:

Right, and there are always verbal promises that they think we’re going to honor—but no court is going to honor that.

I want people to also know that in Illinois, there’s no such thing as, “Let me write it on a piece of paper or a napkin and sign it.” It’s called a holographic will. Some states do honor those. Illinois is definitely not one.

I actually tried one time just to see, because my client insisted, “Please, see if the judge will accept it.” And there’s no way. I don’t even try anymore because that’s what the statutes say.

It’s so important to write it down properly and get it on paper.

Janki:

Right. Notarized, witnessed. That’s the only way.

Maritess:

Absolutely.

We’re going to move on to the second situation. We have a client—we’ll just call them Bill and Mary Jones. This was also a second marriage, and we also have two kids from the previous marriage of the husband. The two kids from the previous marriage will be Jenny and Tom.

Jenny and Tom are from the previous marriage. The father—Bill—is the one we’re talking about. It’s his estate. They both died, sadly, within a month of each other. That was a sad situation.

Now we’re dealing with Bill’s estate. They did prepare documents, which is good. Step one is good—preparing documents. They had a trust created, but then as we uncovered all the information, we realized there’s so much that didn’t get into the trust. So we are in probate.

We were thinking that it shouldn’t be that hard. We’d open the estate, gather all the assets, distribute—because there are really only two beneficiaries. And things got complicated. What can you share about this case?

Janki:

I think “complicated” is an understatement. Initially, we had Bill and Mary’s joint estate, and then we had to do two separate probates, which ended up in two separate courtrooms. We were like, “Okay, that’s just a little hiccup. Let’s move on.”

Then, in uncovering Bill’s estate, we realized the biggest asset that this person had left to his children is now being held by a third party. The issue becomes, is this a probate matter, or is it outside probate?

Tom, who is Bill’s son, has been very patient and understanding with the process, but it’s aggravating to him as the beneficiary that there are third parties withholding assets that belong to the estate.

Now we’re involving other law firms and getting other opinions to see what we can do, because this third party just won’t allow the release to the estate.

Maritess:

And we didn’t anticipate this going into it. The documents we had—and reviewed—had pretty straightforward language. As estate planning attorneys, we were like, “This looks good. We have solid proof that this belongs to the estate.”

But the third party is disputing it.

Janki:

Yeah. Now we need to handle that outside of probate court. That one is becoming very challenging. I really do not blame Tom for being frustrated, because this is certainly his dad’s hard-earned asset.

He worked so hard for this, and it’s clear with our documents that it should go to the estate. We really should be in a situation where everything’s been cashed out, and we can start making distributions. But now we’re waiting and waiting.

Unfortunately, we have to engage litigators because this part of the law is more estate litigation versus just regular probate administration, which can be fairly straightforward: open the estate, distribute the assets, close the estate.

This is litigation between our client Tom and this company, and now we have to bring in more people.

Of course—is this going to take more time? Yes. Is this going to take more money? Yes. We’re hoping to resolve it as soon as possible. We’re hoping that just starting more court involvement will be enough to get the money released. But again, complications that probably could have been avoided.

Maritess:

Yeah, definitely. I think it should have been laid out clearly in the trust. What trustees can do is go back to their assets and see if things are retitled properly.

We always remind our clients every three years: “Come in. Let’s see what’s updated.” If not, just come in and have a chat with us. That’s when Janki and I will ask, “Did you buy anything new? Any major changes?”

And that’s when we hear, “Oh, we have this random bank account,” or, “We have this,” and it’s not in the trust name. It’s very, very important to know what assets you have. I’d say every year—you just never know.

This could have been avoided if the attorney had been diligent to check the paperwork, check the funding of the trust, and ensure everything was properly retitled.

Janki:

Especially because we wouldn’t have had this third-party issue had we been involved. We were not the ones who prepared the decedent’s estate plan. If we had been, we would have checked into this particular asset, looked at the beneficiaries, made sure it was tied to the trust—all of that.

Often people create documents and then set it and forget it. They say, “Oh yeah, it’s there,” and the lawyer never checks in. They never think about it. But that’s not how you deal with estate plans.

Maritess:

I always say it’s like a car. You need oil changes. You need tune-ups. There could be something major in there that’s really going to blow up your estate plan, and this is an example of that.

We always like to have communication with our clients often, as well as every three years—come in and check it out. It doesn’t always happen, but we do our best. Is that fair?

Janki:

Yes. We also do trustee schools and different ways of educating our clients. I think that’s important too.

Maritess:

These are examples of two complicated estate administrations that we’re still dealing with. We hope that you’ve learned something today. Our point is always to do the planning, as opposed to the post-drama that can ensue. Our preference is to make it clean, easy, and, when a person dies, we’re just involved to release assets and distribute.

There’s a bit of paperwork to do in trust administration, but it’s much faster, it’s very private, and it’s less expensive. So, absolutely a much better option. Agree?

Janki:

Yeah, yeah.

Maritess:

Anything you want to add?

Janki:

No, I think you hit home with just ensuring that you have an attorney who is checking in on you no matter what.

Even though for us it’s every three years, we have clients who come every year, every six months. A client I’m working on comes in twice a year. We’ve taught them well and conditioned them to, “Hey, any changes you have, please come and talk to us,” so we’re avoiding the drama, as you said.

Maritess:

That’s right.

Janki:

That’s right.

Maritess:

Well, thank you so much for joining me on this podcast, and thank you all for listening or watching.

We’ll see you next time.

Janki:

Thank you.