Communicating with your Attorney

Communicating with your Attorney

Top 5 tips on communicating with your attorney:

When speaking with your attorney or your attorney’s paralegal it is important that you divulge everything without crossing the line into a therapy session, you are paying by the hour. Speaking personally, I enjoy getting to know those that I am helping. However, I am helping you by telling you to use your time and mine wisely

1. Slow Down: It may sound counter-productive but you know your situation inside and out. You are living it, we are not. Although attorneys and paralegals are well versed in taking short hand notes, at times this is not enough when there is a frantic person on the other end of the phone going through the details of their recent, {insert emergency situation here}. Slowing down will give you a chance to sort through the event and be specific. We need all of the little details even if you think it is irrelevant, we may see it completely different.

2. Take your own notes: You as the client should always take notes when speaking with your attorney’s office. Whether you call to ask advice or we have called you to ask a question or request documents, it is a helpful tool to refer back to without having to repeat the phone call or conference you just had.

If a situation is not an emergency and you simply have information or a quick question, jot it down for your next phone call or email. Once you have compiled a few, go ahead and contact us. This will save some time and energy (and, ultimately, fees you will have to pay).

3. Be honest, always: Especially if you Communicate Attorney think it may harm your case. If you are concerned about it, most likely the other side is thinking about it too. The best way for us to deal with bad facts is to know about them. We don’t like surprises.

4. Just do it: When your attorney’s paralegal contacts you and states that you need to fill something out or gather a ridiculously large amount of documents, it is best not to avoid it. Always ask questions, but don’t delay the inevitable. You will eliminate the calls and emails from us and keep a little more in your trust account for those important hearings.

5. Your time is important too: If you want to sit down and talk with us, call the office first to set an appointment. We would hate for you to sit and wait long while we finish up what we are working on. If you show up unannounced, while we try our best, there is no guarantee you will get to see someone.

Photos in this blog are courtesy of: bufetejuridico.org/, flickr.com

Clark Estate

Undue Influence and Fiduciary Breach Can Reverse Terms of Will In Probate, a quick look at Clark and McCormick

Recently, there has been much publicity surrounding the estate of Huguette Clark, and the heirs and beneficiaries fighting over the vast (roughly $300 million) estate. Interestingly, when reviewing the value of the estate and the amount of attorney’s fees distributed from the estate, I couldn’t help but think about the number of attorneys salivating to get hired to represent the parties involved.
Huguette Clark
Roughly two years after her death, the interested parties reached a settlement. Interestingly, the attorney’s fees to be paid from the settlement are almost $25 million. While that number seems staggering, it is roughly 8% of the total value of the estate.

In her original will, Ms. Clark made a provision for a significant amount to be distributed to her nurse and companion, Hadassah Peri. Ms. Peri had received a substantial amount of gifts during Ms. Clark’s lifetime (approximately $31 million). In the settlement, Ms. Peri agreed to pay back the estate $5 million over the course of 6 months. The settlement also provided that if any other assets totaling over $100,000 are determined to have been given from Ms. Clark to Peri or her heirs, the estate could seek the return of additional funds from Ms. Peri, leaving her obligation to the estate open.

This case brings to mind the fiduciary duties associated with probate matters and probate litigation. In a recent case from the 3rd District Court of Appeal of Florida, McCormick v. Cox, 118 So. 3d 980 (Fla. 3rd DCA 2013). McCormick, the attorney for the decedent, prepared two trusts. McCormick was also named as the trustee.

McCormick arranged for an appraisal of the property as of the decedent’s date of death. The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000. However, billing records provided by McCormick shows he had been working to convert the property from a golf course into residential property. The appraisal McCormick used on the decedent’s estate tax return did not reflect the best use of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold for $12,000,000.

McCormick also did not provide a trust accounting report to the beneficiaries until April, 2005. The trial court found this to be a “significant breach of obligation”. Then, when the property did sell, McCormick instructed the closing agent to make separate distributions to the trust, primarily to fund “trustee’s fees”, totaling over $1 million. The beneficiaries ultimately filed a lawsuit against McCormick and his firm. After a trial of 8 days, the trial court ruled, and the appellate court later upheld, the removal of McCormick as trustee, that McCormick had breached his fiduciary duty, and required McCormick to repay funds to the trust.

The Court noted that McCormick’s extraordinary and unilateral payment to himself of a seven-figure fee from trust monies, without prior disclosures of alleged entitlement and amount to either the beneficiaries or the court, constituted a flagrant breach of duty. Even when the beneficiaries learned of the funds paid to McCormick’s firm and confronted him about the amount McCormick, instead of restoring the payments or placing the disputed funds in a separate account, simply retained the funds and waited for the beneficiaries to sue him.

The trial court required McCormick (and his firm) to pay back $2,146,812 in expenses incurred due to their undervaluation of the property, found the legal fees charged were unreasonable, and required disgorgement of $1,348,000 in attorney’s and trustee’s fees.

Assets at Death

Divorce and the disposition of assets at death

With the number of people getting divorced increasing, and the number of older “baby boomers” divorcing and/or dying, the Florida Legislature altered Florida Statute §732.703(2) relating to the effects of divorce on the disposition of assets at death. The Statute states:

“A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent. An individual retirement account described in §408 or §408A of the Internal Revenue Code of 1986, or an employee benefit plan, may not be treated as a trust for purposes of this section.”
Fighting over money
In reality, once the marriage is dissolved, and a Final Judgment of Dissolution is filed with the Court, any asset transfer or payment as listed in Florida Statute §732.703 (i.e. life insurance policies, POD accounts, retirement accounts) becomes a nullity and is not valid. However, after a dissolution it is still very important to change the beneficiaries to those assets (obviously, if those are assets not distributed to the former spouse). If the beneficiary to a policy is not changed after a dissolution, the “payor” may still submit payment to the former spouse after death. This means the current beneficiaries (most often children or the current spouse) would then have to file a lawsuit against the former spouse and/or the asset manager (retirement company/insurer/etc.) to recover those assets transferred to the former spouse. A failure to timely change beneficiaries to those assets after a dissolution could cause delay, expense, and frustration for grieving families.