There are several reasons why retaining the Law Firm of Saliterman & Siefferman, P.C. – established in 1976 and in its 40th year of serving in Minnesota – is important in your estate or probate litigation cases.
Many, if not most, serious contemporary authors have indicated that social capital, trust of family, other persons, and established institutions, has reached dangerous and shocking lows. As the Baby Boomer and successor generations mature, litigation in probate court has simultaneously reached new highs. Many family members and others feel there is little or nothing to lose and much to gain by reaching for and taking assets, and outright brinksmanship in and out of court. Increasingly, it has become apparent that probate litigation is not necessarily a “specialty” but rather involves litigators who are also very well versed in business, finance, accounting, securities, real estate, intellectual property, evaluations of business enterprises, on the law and governance or authority power structures in business corporations and other organizations, as well as on capacities to convey ownership interests to others.
The litigation process and avoidance thereof involves educating others, including the judiciary itself, whose fine judges and lawyers are not always extremely well versed in business, real property, tax, and intense dynamics among family members and businesses. Many are not, by their constitution and temperament, always suited for the high stress tolerance and sometimes truly outrageous adversity of the judicial process.
Similarly, personal representatives, special representatives, trustees and other fiduciaries, are not always equipped to address the issues in front of them. Sadly, delay and often substantial expense result. Today there is often a need for training and deep knowledge of human nature to perfect settlement and preclude litigation before it formally commences, or after commencement to bring it to a close. Attorneys need fortitude and the inherent personality attributes to often take a stand that is strong and well-articulated as circumstances permit, without losing sight of the goal for their clients, and in accordance with law and ethics.
In our wonderful state of Minnesota, not all persons, as suggested, are simply constituted to deal with the burden, storm and stress of litigation. It is the lawyer’s mission to help address these very natural and inherent proclivities to be able to address the task at hand. Well-drafted wills and trusts, and the use of transfers or conveyances of property quietly, and often confidentially, help avoid costly probate altogether and are a vital compliment. They can help avoid certain assets and transactions being focused on in probate under the control of the probate process directly, which proceedings are made public. Settlement agreements, or prepared from strength attempts of reaching settlement agreements, especially if confidential, both prior to formal commencement and after commencement, are often essential.
Similarly, in probate and in oppressive creditor settings, many decedents during their lifetime have neglected the importance of basic irrevocable trusts, other trusts, and gifting to others, and non-probate asset transfers as part of their estate planning. Such planning can help protect and shield assets from the reach of creditors, and also family health care providers and even governmental authorities. These actions must be taken in a manner to avoid or minimize attacks claiming they are unlawful transfers or fraudulent conveyances, and done with an ability by law and experience, to size up the circumstance. Adherence to ethics standards is important as well. Such irrevocable trusts, for example, are often used to provide protection for those areas, most in need and for disadvantaged heirs or persons otherwise victimized by life’s circumstances, whose needs will not necessarily be addressed in probate settings, especially in litigation. They can also can be used to avoid cash flow liquidity issues confronting the estate at time of passing, and related permit higher values to be obtained for estate assets. They can save substantial taxes.
Also, sadly, probate stress and costs of litigation opportunities are often ignored by clients themselves who do not wish to be reminded of the phenomenon of death and the iron law of passing or who are too busy or distracted, or too trusting in others. Clients have often neglected to factor in or value the ultimate savings of hiring first class counsel and first class accountants, and other parts of the team, such as insurance and risk management professionals.
SOME PAST LAW FIRM LANDMARK CASES
Pioneer probate cases that this firm has been involved in include the passing of one of Minnesota’s most outstanding lawyers, who willed shares in a professional corporation, his law firm, to his daughter, who was also a lawyer within the same law firm, but not a partner or shareholder. This was the first case of this nature in the State of Minnesota and this firm prevailed in representing the daughter in the share conveyance to her, despite challenges to the conveyance by other shareholders.
In another case, the firm tried what it is understood to be among one of the very first cases in America that involved essential issues such as undue influence over and diminished capacity of the decedent, a Holocaust survivor, and whether his vulnerabilities were exploited by one of the children.
In another case, the firm successfully represented a defendant in a transfer of assets via his estate plan, in a well-respected media enterprise to a spouse, shortly before litigation. It was upheld in Court to be part of an overall estate plan and not a fraudulent transfer of assets, as contended by opposition. That same case also involved intentional infliction of emotional or mental distress on our client. The case was cited and used in many law school case books read around the country by law students.
In another of the firm’s cases, the initial and successor Personal Representative was not familiar with all of the real estate and asset transfers of the estate and had mismanaged those transfers. It was necessary for the firm to undertake appropriate, respectful procedures to remove the Personal Representatives or otherwise to do our best to ensure the best values were obtained for estate assets. This was especially important as the personal representative served as business manager with much influence and power over very high value assets. Too often personal representatives, special administrators, trustees and even occasionally, the Courts themselves, hire appraisers, managers, professionals and other fiduciaries whose capacities and “on the street” knowledge is not promulgated with their power over the task in front of them.
CONCLUSION
All in all, probate litigation is not a passive process where the Courts can be looked upon on their own, without appropriate energetic and responsible measured advocacy, to take the situation entirely in their own hands. They unfortunately have heavy burdens enough. Neither the lawyer nor the client can sit back and “leave the driving to us”, to the Court, or to the bus driver. Matters must be presented to the Courts in a way, sometimes much on a silver platter, to enable their most enlightened decisions. Much depends on the Judge or the Court.
To avoid injustice and continuation of expenses and to ensure that negotiations are commenced, if possible, with appropriate leverages and entered into with opposition to draw things to a head before litigation commences or becomes out of control.
Litigation, negotiation and mediation are not necessarily so simple. Fact and law, research and development of negotiation strategy and leverages, much of the time based on fact, law, and ingenuity, are necessary. However, they are too often overlooked, ultimately adding greater financial and emotional cost and delay in the long run. Use of a truly qualified, motivated, top-notch accountant’s, and an insurance/risk manager’s input is also often necessary. A half-hearted, passive, inattentive approach can be costly; although you normally may “catch more flies with honey than with vinegar”, at least at the right time.
Many people do not recognize, sadly, that decedents are not able to be present at litigation and, whether obvious or not, it sometimes becomes almost a “free for all” with other interested parties present with not only their desires for money or wealth, but tragically, their egos as well. Often, even with phenomenally good judges or referees, which we have here in Minnesota, there is nobody in opposition to have as their main function to protect the estate assets or decedent’s wishes in a manner commensurate with the pressures. A good probate litigator helps to minimize this tragic and increasingly common phenomenon.
PARTIAL LIST OF AREAS WHERE PROBATE COURT PROCEEDINGS AND LITIGATION ARE FREQUENTLY INVOKED
- Estate Planning often involving serious litigation considerations and related decisions involving disposition of assets by non-probate means, survivorship assets, trusts, gifts, etc.
- Initial decision regarding whether to proceed by informal, formal supervised probate proceeding and filing accordingly.
- Moving case, once filed, to closer Court and external scrutiny of formal, supervised probate proceeding.
- Present Will into probate, as above decided, or contesting the Will in probate on such grounds as lack of validity, lack of capacity, undue influence, fraud or trickery.
- Removal of personal representative, trustee or special administrator.
- Removal of potential other fiduciaries on such bases as conflict of interest, bias, or lack of qualification.
- Omitted or potentially omitted heirs at law, assertion of rights to be entitled to distributions from the estate.
- Proceedings in Court for intestate distributions in absence of a valid will.
- Determining heirs (including potential DNA testing) and assets of probate estate.
- Interpretation of wording or provisions of probate-related documentation, including examination of signatures by forensic experts as to validity, forgery.
- Breach of fiduciary duties; special powers of attorney and accountings under power of attorney responsibility.
- Shareholder fights or dissension add the related issue of share or unit transfer and restrictions, and evaluations of business related assets.
- Assertion of rights and litigation against the estate.
- Claims by creditors of decedent.
- Litigation against insurance companies.
- Business sale issues.
- Farmland sale and evaluation, and even ownership issues.
- Commercial Property.
- Ancillary probate proceedings, in other words, property located in other jurisdictions than where the main probate proceeding is located, often real property.
- False or improper appraisal, use of and distribution of probate assets.
- Litigation involving collections of compensation, royalties and other sums due and owing.
- Negotiation and drafting settlements of probate adversaries and litigation.
