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

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“.

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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.”

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-

up from Prof. Michael Hatfield. (see Court Mandates Use of Attorney,

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.

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.”

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

.

W.F. Owen –

“her estate” – The Loose Thread; Modern Haiku XXXII:1;

“after his death” – Selected Poems of W.F. Owen

“spring cleaning” tiny words (March 15, 2004)

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.

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

outlined by HALT in its Best Practices Guide for Probate Court Websites.

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.

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

Randy Brooks

from School’s Out (Press Here, 1999)

“complaint BillN”