THE INSIDER'S GUIDE TO PROBATE COURT
PROVIDED COURTESY OF RONIN LEGAL SERVICES, P.C. ATTORNEYS AT LAW

          The following material is intended to answer some of your questions about the legal aspects of the most common probate court cases.  It is not intended to answer specific questions about your particular case, since each case is different.

YOU AND YOUR ATTORNEY

          Any probate court case may be a difficult experience.  As your Attorneys, we will help you solve your legal problems.  We can also recommend books on stress, emotional distress and helping children involved after losing a parent.  However, we are not trained in psychological counseling.  If you need help with emotional stress, we will be happy to give you a list of professionals who are trained to help you deal with your feelings.

          To properly represent you, we must have all the facts concerning your case.  Information you withhold can affect the outcome of your case in a negative way.  Your confidential information is not revealed without your consent.

          We want to stress that we are here to advise and inform you and to assist you in decision making.  However, you must make the final decisions regarding your case.  Most contested cases are settled.  The parties eventually reach an agreement, which is entered on the record as the order of the court.  Do not agree to anything that you do not understand.  After an agreement is placed on the record it is extremely difficult to change it.

The Ten Types of Probate Litigation Documents

A probate case may include these documents:

1. Summons.  The summons notifies the other parties that he or she has been sued and tells him or her where and when to answer and that a default may be entered if he or she does not appear and answer.  This document is only utilized where an actual suit is filed against another party.  Most probate cases do not require this document.

2. Complaint.  The complaint begins a civil action within probate court.  It states the facts of the case and the relief that the plaintiff wants (for example, return of funds or assets, support for a person, a share of the property, etc).  The complaint includes information about previous cases of between the same parties.  This document is not a typical document in most probate cases but does come into play if another party must be sued to obtain the proper relief for the heirs or the estate.

3. Affidavit of service/Return of service.  This document shows that the defendant has been served, that is, given the papers filed with the court.

4. Ex Parte Orders.  Ex Parte Orders are issued without prior notice to the defendant.  The order must be served on the other party, who may then file objections to it.  Filing an objection may make the ex parte order ineffective until a hearing is held.  The affidavit for an ex parte order is a sworn statement that affirms that the facts stated to obtain the ex parte order are true.  Some examples are 4a and 4b.  These types of orders are typically obtained to prevent some action that may have irrevocable consequences or to protect finances from being drained or squandered.

4a. Injunctions.  An injunction orders a party not to do something, such as selling, disposing of, or hiding assets or changing the beneficiary on life insurance.

4b. Protective Order.  This order is an injunction that orders the party not to commit some action in relation to another person.

5. Court fees are currently (2006) $150.00 to begin most probate court matters.  There is also a charge for serving papers and for filing motions.

6. Notice of hearing, praecipe, petitions, motions, and filing fee.  These are required for any petition/motion that requires a hearing.  A motion or petition is a request to the court for some type of relief.  A praecipe asks that the matter be set for hearing, and the notice of hearing says where and when.  Each petition/motion that is filed costs $20.00.  At a motion or petition hearing, only the lawyers are typically allowed to speak, unless the court asks you for your position.

7. Temporary orders.  Orders you live by until your case is final.

8. Letters of Authority.  These are documents that grant a person authority to do certain things.  These may be for the Personal Representative of an estate so they can manage the estate assets.  They may also be for a guardian so they can take care of someone that cannot care of themselves or for a conservator so they can care of a person’s finances.

9. Report of Guardian Ad Litem.  A guardian ad litem is generally an attorney that a court appoints to represent a person’s interests.  This is commonly done in guardian and conservator cases.  The Court appoints a GAL to go and speak to the person in question to find out if they understand the court proceedings and whether the person actually needs a guardian or conservator.  They will usually also do some limited inquiry into the person requesting the guardian or conservator authority to make sure this person is trustworthy and that a family members does not object to this person.

10. Judgment.  The document that determines who wins a case and what relief the Court is going to grant.  It is also for financial and property divisions and/or who is going to take care of what specific matters.  This is generally the final document that ends the case.

Who's Who and What They Do

The Petitioner is the person who starts the case and is seeking some type of relief from the Court.  The Personal Representative is the person that the Court appoints to be responsible for an estate until the estate is completely probated or the person is removed by another order of the Court.  A Guardian is a person who is appointed by the Court to make decisions for a person and to have the care and custody of that person.  Guardians are also responsible for managing income as it comes in but not assets that currently exist or currently existing bank accounts.  A Conservator is someone that is appointed to manage or care for another person’s finances.  The Plaintiff is the party who starts a lawsuit.  The Defendant is the person or persons being sued.

Contested and Uncontested Cases

After a Petition is filed any party that has an interest in the matter may file an appearance notifying the Court that they are taking an interest in the case.  They may also file objections to the relief being requested by the Petition.  The Court may or may not hold a hearing on the Petition.  If there is a hearing any interested party may appear and address the Court.  After a complaint and summons are filed and served, the defendant has 21 days (28 days if served by mail or out of state) to file an answer admitting or denying each paragraph in the complaint.  The defendant may also file a counterclaim, to which the plaintiff must file an answer.

Once the answer is filed, the case is contested.  If the defendant does not file an answer, an order of default is entered.  The matter then becomes an uncontested case.  However, the defendant may decide to retain an attorney and move the court to set aside the default.  Judges may grant this, even if it is done just before the case is ready to be finalized.

THE LENGTH OF TIME YOUR CASE WILL TAKE TO COMPLETE CANNOT BE PREDICTED AND NO PROMISE REGARDING THIS CAN BE MADE TO YOU.  ANY TIME FRAMES PROVIDED AT ANY POINT, BY ANY PERSON, SHOULD BE VIEWED AS ESTIMATES ONLY.

Temporary Orders

Temporary orders may be requested at any time after your case is started and before a judgment is entered.  These include orders for governing the care of a person or assets, how to manage certain assets, whether they can be sold or not, what bills to pay and support for certain persons.  Generally a hearing will be required before any temporary order will be entered unless all parties agree to the order.

WHILE YOUR CASE IS PENDING
Discovering Facts and Defining Issues

While awaiting the resolution in your case, we may be defining the issues and obtaining the facts through investigation and discovery.  Types of discovery include depositions (questioning a witness under oath), requests to admit (asking the other party to agree that certain facts are true), and interrogatories (questions to a party that he or she is required to answer under oath).  Appraisers, actuaries (if pensions are involved), accountants, or medical and/or psychological professionals may be consulted (with the client's prior consent).  This may also involve subpoenaing certain documents from various persons, agencies, or entities.

After discovery is completed you and your attorney will discuss your goals and settlement negotiations.  Your case may be conducted without formal discovery, but only on the client's express order and only after the client has consulted with their attorney and executed a discovery waiver form.

Settlement

The attorney might decide to call a meeting, with all or some of the parties and their counsel present, and try to resolve as many issues as possible.

If a settlement is reached, the parties will sign a form containing all the provisions of the settlement.  The parties may be required to approve the settlement in court, when it is a placed on the record.

Court Appearances

Your lawyer may go to Court for motion hearings and a pretrial or settlement conference.  You should assume that your presence will be required at all scheduled court appearances unless your attorney specifically tells you otherwise.

Your Judge may refer a case or portions of a case to mediation and/or case evaluation.  This is often a quicker way to have the case resolved, but the mediator’s recommendation is not final.  Both parties have an absolute right to reject the mediator’s recommendation.  Rejection of mediation should be a carefully considered decision, however, because in some instances you may end up being responsible for the other party’s attorney fees if you reject mediation.  This applies equally to all other parties as well and could result in their being responsible for your attorney fees if they reject mediation improperly.

The final trial date may not be the day your case ends, depending on the Judge's schedule.  You should be prepared for the frustrating circumstance of any court date being adjourned with little or no notice whatsoever.

JUDGMENT

The Judgment is the document that actually grants the final relief in the case.  It also deals with all issues concerning the case including care of persons and assets and authority you may have over these same things.  You will have an opportunity to read the Judgment and discuss it with your attorney before it is entered.  You must be certain that you thoroughly understand the terms contained in the Judgment and that the Judgment as drafted is what you want and can reasonably live with.  Once the Judgment is entered or signed by the Judge it can be extremely difficult if not impossible to set aside or change.

ATTORNEY FEES

Your attorney will quote you an hourly rate for attorney time and support staff time.  You will be charged at the quoted rates for consultations, correspondence, telephone calls, and research work, court time, filing and hearings and any other time spent on work associated with your case in any way.  Since you have retained our Law Firm and not any single attorney, if an emergency or scheduling conflict arises and your assigned attorney is not available, another attorney in our office will represent you.

YOU are responsible for all attorney fees, court costs, filing fees, fees for service of pleadings, appraisals, expert witness fees, other costs paid out in connection with your case, etc.  If your any other person is ordered to contribute to your attorney fees and he/she actually pays, you will be given credit for the amount paid.

Please note:  We cannot tell you what the total fee for your case will be because we have no way of knowing how much time will be spent on your case in advance.  The time spent on your case and the costs incurred depends on the Judge, selection of counsel by the opposing party, the opposing party's conduct, complexity of issues, and numerous other factors beyond our control.

Five Ways To Reduce Your Legal Fees

Every member of our staff understands this is a very emotionally and financially trying experience for you.  We also understand you wish to keep your costs as low as possible.  The following information is not intended to prevent you from contacting your attorney or his/her staff any time you feel you need to, nor to make you feel as if you are being a burden or a bother.  Please contact any one in our office anytime you feel it is necessary.  However, the following information is intended to alert you to how litigation costs can escalate dramatically and to inform you of some very simple tools and steps you can use to help you control these costs.  The following are four key things you can do to curb your litigation costs.

1. You can greatly reduce "legal footwork" by clearly and concisely completing all the information requested on the Client Interview Form, or any other subsequent documents in a timely manner.

2. Any information you can get regarding bank accounts, annual pension reports, stocks, assets of any kind etc., will help and save you attorney/staff time in trying to obtain information through the other attorney or other legal process.

3. A letter is an inexpensive way of keeping your attorney up to date on information they may need to know about your case or asking questions about things you don't understand.  If you wish advice on a current situation, a letter gives your attorney a chance to think about your problem before they communicate with you.  It takes much less time for your attorney to read a letter than to have a telephone conversation or conference.

For example if your attorney spends 24 minutes (0.5 hours) on the telephone and another 12 minutes (.25 hours) writing a memorandum on that call for the file, it will cost 0.75 hours at $165 per hour or $123.75.  If on the other hand, your attorney spends 6 minutes (.25 hours) reviewing a letter and another 12 minutes (.25 hours) discussing it with you it will cost .5 hours at $165.00 per hour or $82.50.  As you can see, frequent or lengthy telephone conversations add up quickly.  In addition, a letter provides a written document that your attorney can keep in your file for review.  And if you are confused about something, putting it down on paper and seeing it in black and white is often helpful to both you and your attorney.

4. Since you will be billed for all of the time that your attorney spends on your case, you will save money whenever you can do your own negotiating, for example, on day to day issues such as who pays the car insurance or other bills, care arrangements, etc.  Whenever a lawyer is asked to negotiate on your behalf costs escalate.  You will pay for (1) your telephone call to your attorney, (2) the telephone call to the other attorney, (3) his reply to your attorney after contacting your spouse, and (4) your attorney's response to you.

If each call is a minimum of .25 hours, each round of negotiations will cost you at least 1 hour of time at $165.00 or $165.00.  If round one does not solve the problem, we begin round 2.  It is far more expensive to use your attorney to negotiate those matters than if you can resolve them on your own.

5. Write down several questions at a time and submit them all at once to your attorney for review.  You will kill multiple birds with one stone and make full use of the time you are billed for.

You might be able to think of other ways you and your attorney can work together efficiently.  If each of us considers what needs to be done and the cost and benefit of each task, we can do the best job for the case with the available resources.  If you have any reasonable questions about a billing item or cost for which you were charged, you will not be charged for the time spent discussing such matters.

AFTER THE CASE IS OVER

After the case is concluded, you might need an attorney for the enforcement of certain provisions.  People do not always follow what the Court has ordered and enforcement proceedings may be necessary.  Some proceedings may even involve contempt proceedings.

Ronin Legal Services, P.C.
Protecting Your Family and Your Finances
20372 Eureka
Taylor, MI 48180
(734) 324-3100
www.roninlegalservices.com