Tips for cutting conflicts and costs in complex cases

Mediation, using professionals and better monitoring of fees all can help

Lise Olsen (lise.olsen@chron.com)
June 25, 2007
Houston Chronicle (TX)

When a relative dies or becomes incapacitated, Texas family members frequently turn to the state’s probate courts, where, most of the time, probating a will or naming a family member as guardian is swift and inexpensive.

Most of the time.

But when a case involves feuding family members, matters can get complicated. And costly. Grief, divorce, sibling rivalry, troubled child-parent relationships, squabbles over status and accusations of manipulation or mismanagement often intensify already difficult circumstances, judges and lawyers say.

“Sometimes there are just old internal family disputes that have been sitting around for 30 or 40 years that come out among siblings,” said Travis County Probate Judge Guy Herman, who serves as the chief administrative probate judge for the state. “Usually you find that one person is claiming that another sibling is financially abusing or taking financial advantage of a parent. The allegation may or may not be true.”

Cases mired in conflict generate the biggest fees for lawyers appointed by the court, some of whom receive $300 an hour or more to resolve disputes, including feuds over headstones and accusations of familial fraud.

In probate court, lawyers must get judges to approve fees for the work they do. They also ask them for permission to hire other experts.

Ultimately, that money comes from the estate of a family or ward-of-the-court. Bank accounts can be wiped out by professional fees, a process lawyers refer to as “getting upside down” in a case.

Herman said he routinely reminds people that lengthy disputes drain family funds and at times exhaust money needed by a disabled parent. He routinely orders mediation, arguing all can save by settling old scores.

In interviews, he and others suggested the following for reducing conflicts and costs.

• More mediation. Judges in probate court don’t tend to use mediation services as often as family-court judges do, according to records and interviews. Lawyer Jody Helman, an Austin attorney and mediator, said mediation can save time and money — if it works.

• The use of professional guardianship-services companies. Because few such companies exist in Texas, judges, particularly in large counties, often assign lawyers as guardians for disabled people when family members are unwilling, unable or unqualified. Professional guardians could provide a less expensive alternative.

• Better monitoring of billing procedures and hourly lawyer fees. Partly in response to the Houston Chronicle’s reporting, many Texas probate judges are beginning to publish their first written guidelines on hourly rates and appropriate charges for legal and nonlegal services. Travis County has had written guidelines for years; Harris County has new ones. All other Texas probate courts are expected to adopt them, Herman said, but enforcement depends on the judges.

• Simplify the appeals of bill disputes. Families who complain about fees in probate cases then must hire lawyers to file formal objections, seek hearings or even pursue lawsuits. Judges could adopt local rules that would allow people to protest bills through some type of dispute-resolution service.

“What’s troublesome is that often the person whose money it is can’t participate — they’re incapacitated or dead,” Herman said. “The court always has to look out (and) be sure that the parties aren’t just looking out for their own interests.”

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