f/k/a archives . . . real opinions & real haiku

March 13, 2006

probate and pro se: whose court is it?

Filed under: pre-06-2006 — David Giacalone @ 8:28 pm
Last May, we challenged estate lawyers to help create or improve
their States’ online probate websites.  Like the legal reform group
HALT, we believe that Americans needing to probate an estate
should be able find resources online that will allow them to complete
the probate process without a lawyer (or, to come to the well-informed
conclusion that a particular case is too complicated and requires the
use of a lawyer).
.
[Note: HALT has taken some of this information down from its website.]
In its National Probate Web Site Survey, HALT found last year that
Vermont probate courts offers the best self-help website, and that only
three other states  (Maryland, New Hampshire, Connecticut) and the

District of Columbia also provide useful information. See “States Provide Few Probate Resources Online“.
.
f/k/a endorsed HALT’s statement that:
“Probate is not the complex, intimidating process many
people believe it to be. For years HALT has encouraged
states to simplify their probate process- especially for small
estate administration. Simplifying procedures and providing
assistance to non-lawyers would make probate more ‘user-
friendly’ and help more people avoid unnecessary legal costs.
We applaud Vermont’s steps in this direction and urge all
states to follow its lead.”
exit
We still agree with HALT, but are not surprised that estate lawyers
might have a different opinion (e.g., weblogger Joel A. Schoenmeyer‘s
belief that “not hiring an attorney is usually a bad idea”).  What is
surprising, however, is learning from Wills, Trusts & Estates Prof Blog
and Joel’s Death & Taxes that courts in Texas, Illinois and Florida
are requiring that applicants hire lawyers in order to probate a will
(unless the applicant is the sole beneficiary).
Professor Gerry W. Beyer at WTE-ProfBlog, first brought this to the
attention of the weblog world on Feb. 16, 2006, after receiving a heads-
and the follow–up post).  At WTE-Prof Blog, Prof. Hatfield has also
done an excellent job outlining the statutory and constitutional reasons
Why An Attorney Cannot be Required to Probate a Will.”  Death & Texas
has also weighed in, saying the same is very likely to be true in Illinois.
dead end sign
Prof. Hatfield and Lawyer Schoenmeyer have a very good point that
pro se parties can make probate court messy.  As Hatfield puts it:
“The judge can hold a pro se litigant to the same standards
of practice (100+ cases to that effect) but cannot require her
to hire a lawyer.  I don’t blame the probate court judges:  I
wouldn’t want to hand-hold pro se litigants either.   But the
judge’s remedy is to rule against them when they make mistakes,
not deny them access to the judicial system because they find
them annoying.  This is not mythical Judge Roy Bean libertarian
Texas justice; quite its opposite.”
The f/k/a Gang thinks we need a much more positive approach to the
pro se applicant in probate court (or any court).  In Feb. 2004, we quoted
a New Hampshire report on pro se litigants (“Challenge to Justice,” Jan.
2004, pdf) that has the correct attitude.  The Report ackowledges that
They come into their court, on their own, with a conflict or change in
their lives, and they expect a resolution. That is their constitutional right,
and that:
“All of the suggestions within this report however, are grounded
on the single principle that meaningful access to justice in today’s
world means a clear recognition by those involved in the system
that many of our constituents want to go it alone when they come
to court. Our obligation is to give these citizens the help they
want, need and deserve.
That brings us back to our opening above, and our 05/05/05 post.
The public in every State, is entitled to user-friendly information that allows
an individual access to probate justice without a lawyer.  With such infor-
mation, many individuals will surely choose to hire a lawyer, but those who
do not do not become second-class citizens and supplicants, and they
surely are not lepers who need to be barred from court.
Vermont’s probate website scored the highest in HALT’s survey,
because: 
“consumers can find a wealth of information about probate,
including a step-by-step guide to administering and settling an
estate, links to local probate courts, links to necessary forms
and instructions for using them, and a complete explanation
of Vermont’s special rules for expedited small estate adminis-
tration.”
checked box With that model, bar associations, state court administrations, law
schools, and other members of the legal community can and must
create similar services in every state. Once, a quality website and/or
at-court assistance program is provided, the “problems” faced by
probate judges in dealing with pro se parties will be greatly reduced.
Probate judges and clerks will be able to point to such resources
and insist that pro se litigants make use of them.   But, they will not
be able to bar the courthouse doors to the people who own the courts.
her estate
dividing
the children
after his death
the width of our
favorite path
spring cleaning
leaving the rosin
on papa’s fiddle
.
“her estate” – The Loose Thread; Modern Haiku XXXII:1;
“after his death” – Selected Poems of W.F. Owen
spring cleaningtiny words (March 15, 2004)
tiny check HALT has compiled a Best Practices summary which highlights specific actions
state court administrators can take to improve the content and user-friendliness
of their web sites.
Click here for the Best Practices.
Click here for the Survey’s Grading Criteria.
Click for local probate court Contact Information
Click to learn about small estate non-probate procedures
update (March 14, 2006): Joel Schoenmeyer is not exactly convinced
that lawyerless probate is a good idea.  You’ve got to shoot your way
past an army of strawmen (and worse-case-scenarios) to read the entire
post.  Click for his Thoughts.
follow-up (March 15, 2006):  I have a bit more time to respond today to Joel’s
post.  He says HALT is inconsistent in saying both: “Probate is not complex”
and “For years HALT has encouraged states to simplify their probate process.”
HALT would have been more precise had they said:
“Probate does not need to be a complex and intimidating
process — certainly not in most cases. . . . . “
Joel also faults HALT for giving Connecticut a good score, despite its
probate system having a bad reputation.  HALT was not surveying or
scoring the entire system, only the quality of each state’s website as a
source of information about the probate process.
scales over
Using the guild member’s “we’re here for your protection” argument, estate Lawyer
Schoenmeyer then seems to suggest that no estate lawyer has ever swindled a client.
(but see) He also asserts that probate reformers know “the price of everything and the
value of nothing,” and would not be “willing to pay more in taxes to get the things they
want?”   Of course, one does not have to know the value of everything to know that
the price of a particular service is often simply too high.   And, as for the tradeoffs, most
consumer advocates that I know would gladly pay more taxes to improve the court system
(even though we’re usually not anywhere near as wealthy as those trying to hold on to their
privileged position). That is especially true when the improved system may, over time, require
fewer resources, and the users of the system will often be able to avoid significant legal fees.
update (March 16, 2006):  At Death & Taxes, Joel Schoenmeyer posted on this topic again
yesterday with “Pro Se Probate: Some Final Thoughts” (March 15, 2006).  Since he has
previously stated that applicants should have the right to appear pro se, he doesn’t think
he has to answer the question whether they should also have the right to be provided with
user-friendly court websites that adequately assist them in that process.  He does suggest
that pro se wannabees head over to their county’s law library.   The post also lumps all
“probate reformers” together, so that he doesn’t have to deal with HALT’s proposals.  Of
course, you should read the entire post.  Here is part of a reply Comment that I posted
there this morning:
Comment
Joel, the Illinois probate court system (like most across the country) treats
pro se applicants as lepers or nuisances. It woefully fails to meet the standards
HALT is well aware that many states have their probate services provided at
county or circuit court levels. That is why it provides a page with links to state
and local courts.
Using local administrative units in no way prevents the central court administra-
tion for each state (perhaps with the help of the local estate bar?) from developing
materials thatcan be used at the local level (pehaps achieving a useful uniformity).
Of course, local courts and bar associations might also decide to take the lead,
creating resources that could become the model throughout the state.
Attempting to lump HALT in with less responsible or capable “reformers” is sort of
silly. HALT has existed since 1978, and has over 50,000 dues-paying members,
along with a staff of attorneys and paralegals who believe “that all Americans should
be able tohandle their legal affairs simply, affordably and equitably.” It does much more
than probate-related issues. Its many “Reform Projects challenge the legal establish-
ment to improve access and reduce costs in our civil justice system at both the state
and federal levels.”
My original post on probate was headlined “Whose Court is It?” My answer is that
probate, like all courts, belongs to The People, not The Lawyers or The Judges.
courthouseS
flag on the coffin . . .
her gloves off to hold
the child’s hand tight
estate auction–
can’t get my hand back out
of the cookie jar
from School’s Out (Press Here, 1999)
“complaint BillN”

 

1 Comment

  1. […] probate & pro se (from f/k/a) […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » our self-help link collections from 2006 — January 6, 2007 @ 2:56 pm

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