How to Provoke Trust in Probate
By Patricia Louise Nelson
As a probate attorney, I have observed situations that caused devastating, painful, potentially irreparable harm to families. I have also been privileged to observe situations that resulted in healing long-term family mistrust. I have developed a strategy to cultivate healing rather than harm through the probate process.
First, I’d like to acknowledge that probate is far from ideal. It is a complicated, baffling process that almost by definition happens at a time when a family is vulnerable because a family member has died. When a family member dies, I envision a jar of marbles with one of the foundational marbles being removed. All of the marbles in that jar shift at least a little. I see those same sorts of shifts in families when one of them dies. The relationships between all of the other family members shift in predictable and unpredictable ways.
Given this vulnerable spot for families, I encourage my clients who are the personal representative of an estate to act in a way that is likely to provoke trust. It’s fairly easy to imagine ways a person can provoke suspicion. How does one provoke trust?
It’s simple, but not necessarily easy. I suggest that we provide more information and documentation than is legally required. Keep lines of communication open. Take advantage of other family members’ knowledge, training, and experience. Give each family member copies of bank statements; talk to them about important events, like listing real property for sale, before doing it; listen to comments, suggestions, even criticism with an open mind. In my opinion it is better to know about unhappy family members while there is still time to address their concerns during the probate.
As the personal representative, my client has broad authority to administer the estate without disclosing to other family members what he or she is doing. My client has no legal obligation to provide documentation of information to other family members. In the end, my client accounts to the court for all of his or her actions after the fact, giving notice to other family members of what happened. Other family members may have the opportunity to object to the personal representative’s actions, but by then it is pretty much said and done. Any harm caused by the personal representative’s choices is already done.
In some families there are certain family members who are reluctant to let go of past hurts. They are likely to cause problems and delay in the administration process if they are invited to express an opinion about the personal representative’s choices. Sometimes, due to these and other circumstances, it is not wise for a personal representative to try to provoke trust. Whether provoking trust is an option for any given family is ultimately the personal representative’s choice. My goal is to encourage the personal representative to consider this option and to make a mindful decision about how to proceed.
