Don’t kid yourself. Your contested probate IS about the money.

dan • July 20, 2022

If there is one thing I can count on when working with clients in contested probate matters (and just about any litigation, for that matter), it is that at some point, they will assure me that “it’s not about the money.” I think there are two reasons everyone feels compelled to make this claim. First, they don’t want to be seen as greedy. Second, they want to see themselves as having higher principals at stake than mere money. I don’t doubt that people who say that it is not about the money really believe it.
But here is the counterintuitive consequence of believing you have something more than money at stake. You may think not prioritizing money makes you a more reasonable person. It does not. Viewing your probate case as a statement of principal and not about money is usually an obstacle to resolution because the only thing the court can do is move property around between the parties.
It cannot make people feel bad about what they did. Or apologize for it. Or perform some other act of contrition. This is not a criminal case where victims get to make “impact statements” to the person who harmed them, and the guilty party can be forced to perform community service. A probate court does not have the time, interest, or ability to validate your principals.
It has one tool: if the judge or jury thinks your claim is supported by the law, they can require the other party to pay you money (or refuse to force you to pay the other party money). So if you really are doing this for some reason other than money, you are setting yourself up for disappointment because your best possible scenario cannot get you what you want.

getting your expectations right is critical

Unreasonable expectations aren’t harmless. Refusing to consider or make settlement offers based on the hope that, someday, a judge or a jury is going to make an unambiguous statement to the world that you were right, and the other party was wrong can lead to a lot of irrational, expensive, time consuming, energy-sucking decisions.
We have had clients tell us they wanted to turn down a reasonable settlement offer unless the other side would agree to also send a letter of apology. Even in the extremely unlikely event that such a request was to be accepted, now we have to negotiate what counts as a satisfactory apology letter. Is a perfunctory “sorry” in a text message good enough, or do we need a handwritten card with a full admission of all the things the apologizing party did wrong?
If you are looking for more than money out of this process, not only are you limited to receiving the one thing you say you don’t care about from the court, but you likely will find the process that it takes to get there to be extremely stressful and frustrating, and ultimately not worth it. People who haven’t been through litigation have a fantasy about arriving at the court, telling their story, and getting a nice, tidy verdict that they were right. In their mind, it is going to be like an episode of Judge Judy. They are going to go to the court with their evidence, argue about it in front of the judge for 15-20 minutes, and then the judge is going to tell the other side what a horrible person he or she is and how much money they owe for their bad behavior.
They don’t realize how stressful it will be to be cross examined by a hostile lawyer while a judge or jury silently stares at them, stone faced. They don’t picture the frustration of having to sit there silently while the other side lies about what happened. They don’t expect their favorite piece of evidence to get tossed aside due to some arcane evidentiary ruling or their best witness to be out of town during the hearing. They don’t picture themselves having to dig through years old documents to answer discovery requests, many of which will feel highly invasive, or sit for an hours long deposition.
In short, most people don’t realize that when you sue someone, you open yourself up to investigation by the person you are suing. In their mind, it is going to be a one-way street of retribution. That’s not how it works. The other side gets to tell its version of the story too.

After everything else has failed...

Clients frequently misinterpret these warnings to mean that we don’t believe them. Or that we are not going to put every bit of effort possible into fighting for them if they do choose to proceed with this process. I always point out that my encouragement to very seriously consider compromise as opposed to litigation is against my own financial self-interest. Our fees are multiples higher for a contested probate than for an uncontested one. Ten times as high is easily possible. You may have heard someone say that when people fight, the only winners are the lawyers. We work as hard as we can to ensure that is not how our clients end up feeling about the process. But the most certain way to avoid that outcome is to treat litigation as the last option, after every other option has failed.

More important to us than making the most money possible is that our clients proceed, to the maximum extent possible, based on reason and logic, even if them proceeding based on emotion would be more lucrative for us. The challenge in probate, which is not necessarily present in other types of litigation, is that the parties usually have long, close ties to one another. The emotions from relationships that may be decades old can make it difficult to treat decisions about whether to make or accept a compromise offer as a business decision. But at the end of the day, the more you can view your different options for resolution as a math calculation about money instead of as a chance at vindication, retribution, or justice, the sooner you will be able to find peace and move on.

What next?

If you are involved in a difficult estate administration, you can:

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Visit our estate administration page to learn more about how you can protect your rights in a probate or trust administration process.
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