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You would think that having dead people for clients would make for a dream practice. Nobody calling you in the middle of the night to ask you why you did — or did not — do something. No one to complain to the law society about... well, about anything. Unfortunately, that’s not the way it works. According to Kelowna, B.C., probate litigator Geoff White, it’s those left behind that can make the life of a lawyer acting for an estate either heaven or hell.

When a loved one has passed away, an old sibling rivalry can quickly rise from the dead, leading to hurt feelings and sometimes worse. Typically, he says, a family member arriving for the funeral wants to stay in mom’s house — now estate property — while expecting others to stay in a hotel, thus putting the estate’s lawyer in the middle. Or big sister goes through mom’s clothes and gives most away to charity before the other siblings are even off the plane.

While they may not come right out and say it, Tom Smother’s, one half of the musical comedy team Smothers Brothers, cry of “Ma always liked you best!” may not be far from the minds of some.

But even more vicious, says White, are the fights between the kids from marriage number one and spouse number two (or three, or four). The spouse — more likely a surviving widow — understandably wants to be looked after for the rest of her life. The kids, of course, want access to the family piggy bank, the fruit of dad’s lifetime of labour.

In today’s market of shrinking asset values, particularly real estate values, this has become a major issue.

“Sometimes the children feel they have to fight,” says White, “because the estate was their retirement plan. Their own retirement funds have taken a hit and they need to get everything they can from the estate.”

And anything that is a problem for the beneficiaries quickly becomes a problem for the lawyer.

Before the bottom started falling out of the real estate market, a probate lawyer who was dilatory in dealing with an estate could point to the fact that the property had increased in value while he fiddled. Not any more. In some cases, property values are fluctuating tens of thousands of dollars in a month. Beneficiaries do not take kindly to seeing their nest egg evaporating in plain sight. While the estate’s lawyer can’t determine when a property will sell or for what price, he does have some say over when it gets on the market, and the sooner the better, according to White, who is based about 400 kilometres northeast of Vancouver.

Part of the problem can be, of course, other lawyers. When counsel for an angry beneficiary ties up property as leverage in a dispute over an estate, White suggests they’re following an unwise course. While every province has some kind of mechanism that can stop a probate lawyer from dealing with real estate assets — a caveat, lis pendens, certificate of pending litigation or the like — he says these tools “are really only for certain issues, not for leverage. If we have to go to court to settle an issue later, that’s fine, but that’s no reason not to sell the house now.”

Part of the problem is that when it comes to family, even the most rational of us can be a little crazy, and a good probate lawyer understands that most disputes aren’t really about the money.

 “People bring in all these other issues and feelings,” he says. “It’s rare that, once the fight starts, somebody says, ‘I don’t care about the photos or the jewellery.’ Quite often, those eventually get set aside, but consistently there are some hurt feelings [first].”
That’s why he says it’s important to be alive to the underlying family dynamics.

“I think that unless I’m sensitive to those psychological issues, I’ll run into roadblocks and won’t understand why they are there. I’ll be missing a whole lot of what the client is experiencing. But at the same time, I don’t think it is fair to suggest to the client that I have any skill set in helping the client come to terms with those issues. There are others more skilled with those issues. You need to have family counselor and grief counselor referrals available to give them the proper options.”

In the end, he says, it’s all about managing expectations — the expectations of the testatwhat he or she can do through a will and the expectations of the beneficiaries as to just what kind of paycheque waits on the other side of the cemetery.

It starts when you have the testator in your office preparing the will. As a practitioner, you need to understand and explain to your client the challenges that surviving family members can bring if they’re unhappy with the way they’ve been treated in a will. If there are assets in other jurisdictions, you need to consult a lawyer in that location. You need to remind your client that a will is just one part of a good estate plan. And you need to ensure that you are up-to-date on estate options other than simple gifts upon death, such as inter vivos gifts, family trusts, passing property along now while retaining a life estate or even telling the kids to buy some life insurance on the parent to create their own “estate.”

Then, White suggests, there should be no surprises after the funeral.

“Family meetings are quite useful. Make sure everyone is getting the same message. If people really understood what was going to happen, we would avoid a lot of problems.”

That said, White says he always defers to his clients’ knowledge of their families.

“I always tell them to remember who they are dealing with. If they know that telling people what is going to happen will simply create conflict, do they really want to spend the last years of their life dealing with it?”

Not to put too fine a point on it, but, in the end, it won’t be the client’s problem, and whether the survivors have a heavenly or hellish experience with probate will ultimately be up to them.