The Complexities of Probate Litigation, with Scott Rahn of RMO LLP

0:00 It looks correct to my side. It'll be corrected when we record it. Oh, we're recording. Hey, we're live. Probate Weekly. I'm not sure I got the title redone. Welcome. I'm Bill Gross, at Bill Gross Probate. Probate Weekly we do this every week and we invite in guests, most commonly probate or estate-related attorneys. We're excited to have today a big name, RMO's founding attorney, Scott Ron. Scott, thank you so much for joining us today.

0:23 Thanks, Bill. Thanks for having me. Pleasure to be here. And you know, I've interviewed people with small independent sole practitioners to people with really large firms and I'm not sure where you kind of fit. To me, it seems like somewhere in the middle of that range, but you do cover probate both filings, administration, and litigation. So, let's talk a little bit about that cuz some firms shy away, they only do one or the other. Talk about handling both administration, filings, and the litigation as a firm. Why do you handle both of those?

0:52 Yeah, great question. So, we are a litigation contentious trusts and estates firm first and foremost. That is how we are built. That is how we hire. But the reality of the situation is that there are often administrative issues that need to be handled. So, over the course of the years, what we found was that we litigators would rather be fighting for people in the courtrooms than administering estates on the back end. So, we built a really strong team of people who could help with the admin portions cuz what we found, as you highlighted, a lot of people don't like to do both, particularly a lot of the estate planning community doesn't like to do the contentious stuff. They don't Right. Like it when people are yelling and screaming. We have a special pension for it. Perhaps there's something wrong with us. But we're good at it. We like it. We have thick skin, it doesn't bother us, but we needed for those people who referred us those cases, we often found that they didn't want the admin piece back at the end of the case. So, then we needed to be able to service those clients and finish their cases. So, we built a team that focuses on that, but at this point we really for the most part, unless it has some hair on it, people are you know, there's some dysfunction associated with the administration.

2:10 You know, that's really most of the administrations that we handle. So, bring us your bring us your dysfunction, bring us your yelling, screaming, messed up cases, administrative or otherwise, and that's really that's the niche that we fill.

2:25 You know, I don't know that necessarily to do good administration, you have to be a litigator, but I think to be a litigator, you would have to at least have the administration to see what goes on in terms of numbers and what courts approve and don't approve. And know that as a real estate broker, you get involved in cases where, you know, the attorney's been decided and the litigator might be a world-class litigator with depositions and strategies and tactics, but if you don't know the probate no process at same detail or at least have somebody on staff who has done scores of those, you're just going to trip yourself up in the litigation process. So, I find that you really kind of have to have both I would think and again, I'm not passing legal judgment, but from a business point of view, at least have both capabilities in your firm in order to be effective at either one.

3:08 You really need to understand the entire business, right? From the intaking of the estate planning through the planning, the funding, the administration to be able to litigate these cases. I think there are a number of people, especially in the middle of the silver tsunami a lot of people who come and dabble in this space, right? Or who practice door law, somebody comes in with a client they've helped in one capacity, they're the only lawyer that the client knows, so they come back for this and they don't really understand what the process is. They don't really understand how trusts are created or how wills are formed or what an execution or funding looks like and they come with a bunch of questions often with filings, petitions, complaints sometimes in civil cases where they don't belong. And yeah, having a robust understanding of how this world works, I think is critical to being able to do a good and efficient job for our clients.

4:11 I used to go to court every day pre-COVID and sitting on you know the 8:30 calendar, I would see you know attorneys and I kind of knew their background. They maybe Harvard Law School, a Brioni suit, and they're fresh out of law firm. They get in front of the judge and the judge asks them about a probate note and the attorney's like, "What's a probate note?" And it's like "Dude, you have this case. Like, you know, what are you doing?" And I can Of course I can't say that, but I can think that and I'm not an attorney, but I know the process because I've been around it. And so I just feel like especially litigation, you have to really know you have to handle the administrative stuff, you know, before you can get to the litigation. Otherwise, you're not going to get the hearing. You're not going to get heard by the judge if you don't have your hearing date set and clear and ready to go. So that's where I think a lot litigation-focused or exclusive attorneys get tripped up.

4:57 Yeah, I think that's right. It is a separate process and I remember my mentor at my first firm who brought me my first case to handle on my own, she brought it to me and they did a lot of different things and she brought it to me and said, "It's probate. It's weird. It has its own set of rules. It's kind of the wild west, but you're smart. You'll figure it out." and I did and that's really where I grew to love practice area and just kind of fall in love with the bar and how human it is compared to a lot of different practice areas.

5:29 So as a real estate agent, I run this podcast. I have a Facebook group. I get a lot of inquiries that sound like you know, "I need a attorney to sue my you know, trustee, my administrator, my heir, my brother, whatever." And I try to get a little more information about it and it just seems to me as a general rule that it's going to cost about $100,000. It doesn't mean there are cases where attorney can write a letter or make a phone call, but for the most part, if it's going to go to If you have a other party who's intent on going to trial or fighting something, it's going to cost about $100,000 to get a trial. You better have about a million dollars at issue, otherwise you're probably economically not going to get there unless you want to pay for it. And if that's your hobby, I guess you're welcome to do that. Are those number I mean, I know you can't commit to a number, but just in general, am I off track? Is that close to the reality? You know, help me understand what people are just frustrated. They want to call an attorney, but they understand the implications of that.

6:23 I honestly think the number is probably low at this point, Bill. And I think most of the now retired probate judges who mediate these cases have said for a number of years, and this is probably even pre-COVID, that you're looking at $150,000 to get a case to trial, minimum. And that number has probably gone up post-COVID with all the inflation and everything else that we have. So, yeah, I would say 100, 150 is the minimum that you're looking at, and it's really probably well into the twos.

6:56 Poof. It doesn't mean that a case can't be resolved sooner Right. For less legal spend, and I think, you know, we've earned a reputation for being really efficient, which makes us cost-effective in trying to drive cases toward results because ultimately people who come to us, while they want a result and they want whatever they're pursuing or to defend whatever whoever's pursuing them, really what all these people want is to move on with their lives and to not be embroiled in litigation with their brother, sister, step parent, etc. You know, nobody really I shouldn't say nobody. There are some out there, but for the most part, nobody wants to be litigating.

7:38 Right. And so, you know, being able to find a solution that, you know, is not a trial, although we love trial and we're happy to go to trial. Again, maybe there's something wrong with us, but we, you know, we love the trial, the chess match. I think it's for a lawyer, I can't think of anything more fun, but it's not always the best result for the client. Even just going to trial, you get the win, sure, but it's an emotional process and it's time-consuming in addition to being financially challenging.

8:09 You personally, I was in high school and college on the debate team, so I can appreciate the thrill of the competition. You know, it's no different maybe than a football player getting ready for a game for a attorney that they're getting paid, but on the flip side, I find that almost always the client emotionally is not up to the process. They really struggle with it. Now, most get through it and good attorneys help them get through it, but obviously you must you must spend time setting expectations and then also managing your clients' emotions. That's got to be a big part of your job. I deal that as a real estate agent, right? We put a house on the market, it sells, it doesn't sell, multiple offers, their emotions are flying, they're yelling at everybody. You must deal with that though on a more intense basis cuz the stakes are so much higher.

8:51 Well, everybody who comes to us is in crisis, right? Either they've lost somebody they love or somebody they love is compromised. And now they're having to pursue a claim or somebody else is pursuing a claim and they find themselves embroiled in some sort of court process or maybe even pre-litigation dispute. And they don't know what to do. A lot of our clients have never hired a lawyer before, right? They don't understand the process. They don't understand what it takes in terms of time commitment, what the process is, how much it's going to cost, right? Why we can't just write a letter. I think a lot of people think you just, you know, you just go to court and you just tell the judge your story and the judge decides who's right

9:38 Oh yeah, that sounds right. Sure, you're right. And it's just that's not the process in this country. So, we spend a lot of time with our clients and frankly have built a lot of process into our firm to make sure that we're holding people's hands and making sure they understand what this is and what it's not. And I often say, you know, litigation is a tool, right? To be wielded, right? To be wielded expertly and that's what we do here. But it is a process that forces people into a decision mechanism where either the judge is going to decide at the end or we have all these opportunities and we pride ourselves on creating jumping off points to make decisions to say I don't I don't want to go any further, right? And I'm willing to jump off here if I'm able to get this result as opposed to you know, investing another year or two and this much more money and this much more emotional capital.

10:39 It seems to me that how much you or a practitioner wants to focus on the technical, you know, game of their business, you know, not to put it down but the part of what you're trying to do is the fun part, the competition, the preparation. You must have an equal almost an equal amount of hand-holding with customers, setting expectations, calming them down afterwards, calming them down after one hearing cuz there's a long process to go. Is that something you do? You have an associate who does it? Do you have paralegals who do that? Like at some point, how much time can you really spend with a customer's emotions? As a Realtor®, I deal with it, you know, all the time where customers just need to vent but I'm not charging them per hour. It's kind of part of the package deal. For you, being on the phone with you for half hour or an hour venting is going to be an expensive proposition. So, how do you manage that or how do customers expert clients experience that?

11:28 Great question and it all starts with our core values. We live, breathe, die, hire, fire, etc. Employees and clients alike around our core values. And our values are really aimed at, to summarize it, taking care of people. And so, we hire, we train, we mentor from the first person you're going to get on the phone to the last person who's going to close out your case, you're going to get the same kind of treatment. We all treat people the same way. We all lead with empathy and understanding who the people are, what these cases are about. We spend the time to set expectations. We spend the time to explain the process. And I think one of the anecdotes, if you will, that really resonates with me and demonstrates this is years ago, we went through this process where we revised our mediation preparations with our clients because what we were finding was we were going into mediation and the judges weren't really spending much time with us and our clients were getting a little anxious and they would ask, you know, well, the judge is spending more time with them.

12:50 It seems like the judge likes them better, right? Why aren't they spending time with us? So, our pre-mediation preparation with our clients, we incorporated just a dialogue around that's what's going to happen in these mediations because the judges know that we know what we're doing. The judges know that we've prepped our clients for everything and that was one thing that we were missing. So, we're constantly evaluating, reevaluating, updating our process to make sure that every little piece of this is something that the clients understand, are comfortable with. And now we'll go to mediation and the judge will say, "Look, I'm going to spend a lot of time in the other room and you may not see me for a couple hours." And the clients will say, "Yeah, my Arnel lawyer told me that. They told me that was going to happen. Go do what you have to do." And they're perfectly at ease and it just it relieves their anxiety in unfamiliar settings. So, it's really something we take a lot of pride in and we put a lot of time, energy, effort into training people.

13:52 I know in my business, whatever bad news there is, it's better for me than somebody else and it's better sooner rather than later. Unfortunately, and it's tough to make those calls and we're all busy and don't want to make those calls, but at the end of the day, preparation of your client is going to be critical. So, in your business, I do know that you I'm sure you have you know, prospective clients who call directly or through various social media, but I would have to think majority of business at this stage of your career, based on your reputation, is from other attorneys, either probate attorneys that don't litigate, attorneys that do litigate, but maybe don't have the resources you have for a bigger case, or I would think also more commonly, attorneys that don't do probate at all, maybe they have some sort of a judgment and the person they have the judgment against is deceased and needs to be probated in order to effectuate the assets. Talk a little bit about your relationship with other attorneys and how you cultivate that.

14:41 Sure. Yeah, the attorney community is by far our biggest partner. For one, because we only do one thing. So, for all of the other needs that we might have, we need to know who the best and brightest partners are in that space, whether it's employment-related, PI-related, wrongful death-related, etc. So, you know, we've really spent the last three decades now, we're in our third decade, second decade here at this firm, but the last many decades, really cultivating a community of really good, smart, ethical, hard-working people who do right by their clients. So, not only does that give us the opportunity to be able to bring in the good estate planners, family lawyers, the other administrative lawyers who are you know, who will do the non-contentious admins, but it gives us the opportunity to have them have us as a resource as well for when the stuff hits the fan and things fall ugly and you know, people start throwing barbs. So, and we just continue to cultivate those relationships with the people who you would send your mom or sister to. And you know, it really becomes a symbiotic relationship.

16:05 You know, I was a partner at Greenberg Traurig before I opened this firm and I you know, still have wonderful things to say about the firm and its people and my time there. But we were 900 partners, 2,000 lawyers. I think they're 2,500 lawyers now. And one of the things about launching this firm and being a small firm at the time, I think we're 35 people now, was losing that camaraderie and those resources. But what I found was that once you take that leap and you're out on your own, you really have this community. And we had created a community of really good people and professionals. So, it was like going from having you know, 2,000 lawyers to work with to having 10,000 lawyers to work with. You know, where there's a really good, smart people who are committed to doing right by their clients like we are. So, it's really it's an honor and a privilege to be able to work with the people that we work with every day. Thank you very much for their contentious estate matters.

17:14 At the same time, and while you know, have outbound needs, I don't think people understand probate. You're constantly If customers have all kinds of needs and so you're constantly talking other vendors and people and in your case of the attorneys and other specialties, but obviously business comes into you as well from those people and that's probably the focus of your of your business. And yet, as well known as your firm is and you are personally, I also know that people forget. Like if you're keeping it in front of their face, they just forget you and it and it's frustrating. I you know, I was at a family dinner and my own family happened to didn't know I had a podcast. I said, "Well, how could that be? I have 6,000 subscribers. How could I not know I do this?" And the answer is we're all busy and oh yeah, I did see Oh yeah, is that what that is? We all We all have that and I'm sure as an attorney, you know, they meet you maybe some other setting at a social event and they think of you as that. They don't realize you're involved in and specialize in this case in litigation related to probate. What is it you do to kind of keep yourself I want to say top of mind, but at least available so when people think I need somebody in this area that they're that they get to you. There must be other resources or activities you have to keep in front of people.

18:18 Well, I think a lot of it is just being out in the communities that we serve and educating people. You know, even doing things like this and I appreciate, you know, being here today and just being able to talk about what it is that we do, how important it is and how we're able to serve people. And I think if you're out in your community and leading with that how can I give, right? You give and you get. That's just the way it works. And it's a it's a pleasure to be able to give. You know, we were just having this conversation with our team yesterday just about how leading into educating and anybody who spends any time on our website, we've really tried over the past many years to build a robust library of the most common questions that we get asked by people, the things that we see over and over and over again when people come to us looking for help because we want that to be available to people and people will come to us and say you know, I've watched all of your videos and I think, my god, there are a lot of videos. You watched all of them? All of them on whatever their specific topic is, but they feel safer. Yeah. Anxiety lessens, right? And they feel like they're in a good place. And one of one of our lawyers was sharing a story yesterday where one of her law school classmates was considering transitioning his career kind of mid-career into trust and estates. And he was telling her how he was using our website to learn about trust and estates litigation. And I thought, you know, what an honor. He's a lawyer on the East Coast.

20:03 And you know, we you know, we don't have offices there. We don't do work there. You know, we're here in Texas and but what it just it's very humbling for me to know that people are just out there using it for what we intended it, which was to help people.

20:21 You know, if you watched the beginning of this video, we were chatting I was kind of laughing because one of the things that I know is true, I don't know that too many attorneys go to law school after watching TV programs about attorneys in Wall Street and New York City and fancy law firms doing like a corporate primarily and entertainment law. It's always those kind of things or big criminal law. I don't know too many people go to law school hoping to someday be a probate litigator. Yeah, I do find that those who are involved in probate litigation and estate planning love it. I mean, and that's not I don't often have talk to attorneys that tell me they enjoy their practice or their practice area. I'm sure there are practices you don't like. I'm sure the occasional time when you have a setback is frustrating and it's kind of like losing a football game when you play in the NFL, but you know, you're playing in the NFL of attorneys. Talk a little bit about how you are in the private litigation space and why you feel like that's one that really obviously resonates with you when I talk to you.

21:19 Yeah. Yeah, I mean, it really does and it goes back to being able to serve. And being able to help people. I think a lot of people will say that, you know, why did you go to law school? I want to help people, right? And it's really what we do, whether you're corporate transactional, litigation, everything in between. Ultimately, you're helping people, companies, etc. And really for me, what resonated was that first case that I mentioned where I walked into probate court, had been mostly doing general civil litigation, financial services litigation. And when I walked into probate court, I grew up in a small town in rural Wisconsin, very agricultural, very blue collar, 1,100 people strong when I when I left. And I think it's 1,400 people strong now, so it's still not very large. But coming from that environment where people knew each other and you knew who you could rely on, you knew who you couldn't. I walked into probate court that first day and it had that small town feeling. And coming from a town of 1,100 and being in a metropolis of 10 million people, I was always looking for a way to make the universe smaller and closer and more human.

22:37 And that was my experience in probate court from that first day. And from that point forward, I just steered my ship and my career toward this space and it continues to be that. The number of friends that I have in the probate bench, the resources, you know, people you can call in the middle of the night, it's really a wonderful community of people first and foremost and really smart lawyers, right? Because look, in dealing with probate, you know, obviously we deal with real estate stuff, the stuff that, you know, you do. And we're not brokers, right? You see a million more real estate transactions than we do, right? The reality is that we don't do a lot of the business that we see, right? But we're exposed to it, right? So there's so many opportunities to see the myriad of ways that families have made money, the businesses they've started. I mean, God, it's fascinating. So you're working with really smart people and families who've done some really incredible things to create their wealth, to create their legacy. And then for us, you have the chaos of being embroiled in this litigation. And we get to hold their hand and walk them through this.

23:53 Yeah. It's really like I said, it's an honor and a privilege. You know, you can tell the real specialist in this field because the people who want to be specialists or just use that term kind of run away from problems. And those of us who are in this business every day kind of brag about them, right? Like the other Realtors® will brag, okay, I had a squatter, I had rats, I had guns, I had guns with the numbers shaved off, I had we found cash, you know, you can brag about I'm one house, how many different problems you have versus I think you know, standard real estate agents just want to churn and burn through the transactions and I get it or they work on other things. And you as a litigator, I always feel like what a great relationship. Why is it why is nobody running around behind you or other probate litigators with a camera? And now this is obviously privacy issues and such, but this has been area where there's tremendous drama and it also has to kind of motivate you to participate that you want to win the case when there's that drama involved.

24:52 Well, yeah, of course. I mean, you obviously want to do right by your client, right? So it our win is their win. Yeah.

25:01 The drama and the feelings, the emotion, right? I mean, going back to what I said earlier about you have people who are in crisis, right? They're somebody they love is lost or compromised and they're embroiled in a dispute, right? In a an unfamiliar setting, being in court, right? Or just being in this dispute legally. And to be able to again hold their hands, right? And walk them through it. Let them know there's a process to this and that process has an end.

25:34 Right. Right? And you're going to be with them, right? Arm in arm through this process until the very end. I mean, I can't tell you how rewarding it is to see people's shoulders drop, right? When you when you walk them through that. And I think the you know, our customer service email is relief at armolawyers.com and we named it that because it was the most common nomenclature that we heard from people as we were having those initial discussions. People their shoulders would drop and they would just say, "I'm so relieved." Right? To know that you're here, to know that you know what the process is even though I don't and that you're going to carry me through this. So, it's just again, it's just real it's a really rewarding practice area.

26:26 You know, I think the typical consumer has two massive misconceptions and almost everybody has. One is that a will avoids probate and I always I'm not an attorney, but I'm allowed to say that a will gets probated in probate court. Either you have a will you don't, but either way it goes through probate court unless there's an alternative entity, typically an estate plan with a trust of some sort. The second is that if you have an estate plan and a trust that you're immune from litigation. I would say, "No. This I know attorneys are all day long all they're doing is doing litigation involving trusts." And the answer is from where I sit, a non-legal answer is as long as there's a lot of money involved, somebody's bound to make a dispute and hire an attorney to try to get their piece of it. So, talk a little bit about why is it when somebody has a plan and an estate plan and a trust and all that, and maybe spends a fortune getting it put together, how are they still vulnerable or open or maybe make mistakes that are worthy of being sued? How does that happen that people think they're immune and they find out suddenly they're not?

27:31 Yeah, I think it and that's a great point. I mean, the first point you made Bill about people being confused that a will avoids probate. All a will does is tell the court what's supposed to happen in probate court. That's it, right? It's It is a very common misconception. But, getting to your second question and I talk about this a lot is no matter how good, how sound, how robust the estate plan is, if it isn't structured to address the specific dynamics of your family situation and even family dynamics that you maybe can't anticipate, you have to do some crystal ball gazing here, your plan is subject to attack, right? So, you have mom and dad have an estate plan, they have two kids, the kids seemingly get along, right? Something happens down the road, there's a disruption between the children, suddenly now you have an estate plan that prior to this disruption perhaps was perfectly fine and sound and would have served its purposes of transitioning the assets post death to the kids, but now you have where you have two trustees, successor trustees, and the kids who are supposed to administer mom and dad's estate according to that document, but they don't get along. So, they don't want to talk to each other, right? And you need their cooperation cuz they have to act unanimously. And it's really that disruption, right? It's really that family structure that poses the biggest risk. And you can have It doesn't always have to be a lot of money. It can be a small amount of money. People still have the same feelings. They still have those families still have the same experiences and disruptions. So, if you have an estate plan, it has to cater to the specifics of your family situation, and it needs to be structured in a way that is honest about those things. And I think that's really difficult for the estate planning

29:35 Community. I tip my hat to them daily for trying to do the Lord's work and really crystal ball these cases and these scenarios because clients aren't always honest about those things, right?

29:50 Correct. Who wants to come in and say, "Man, is my family a mess. Let me tell you know, we've got mental health issues over here, we've got substance abuse issues over there, and this person's got a gambling addiction, and you know, this one's a spendthrift, and you know, don't even get me started on that one, and you know, so it's really difficult, you know, as a planner, you're trying to suss all these things out.

30:15 Right. And the estate planning community, like I said earlier, super smart, dedicated to their clients, dedicated to their craft, but if they're not getting a fulsome picture of what actually goes on, you know, at the Thanksgiving dinner table, and who comes and who doesn't, it's really hard to structure a plan that addresses all those things. Even if you know the vast majority of it, you're still you're at the whim and fancy of what someone may or may not do, right? And it's not always the person you anticipate. I will say nine times out of 10 or eight times out of 10, people will call and they'll say, "I always knew my brother or sister, they've been this way since they were a kid and they've always been the problem and the you know, the spendthrift and blah." But, you know, every once in a while you'll get people who come in, they're at war with their sibling and they'll say, "I never saw this coming. I you know, we were super close. We had a case a couple years ago with twins. We were representing one, another firm was representing the other, and the other twin was taking advantage. They had swooped in after mom passed and had dad sign a bunch of stuff over to them and kind of taken money out the back door and through you know, the complete surprise of our client, when dad passed, everything was already gone for the most part. There wasn't much left for her and we you know, we corrected it, but it was really devastating because they had a very close relationship up until this dispute happened and I think one of the nicest things that client said at the end and this doesn't always happen, but this particular client said, "You know, I'm really excited to have this behind me and renew my relationship with my sibling because they had talked prior to this. They had talked every single

32:21 Day. And they just missed having that closeness. Despite all of the things that you know, this sibling had done, it was important for them to be able to get back to having that relationship with them. So, you know, it's really again, it's just meaningful work for real people.

32:41 So, essentially I ask you this question because you don't do estate planning, you do litigation both of probate when there is no plan or an effective plan, and you do trust litigation against trust that maybe have openings or problems. So I don't give legal advice obviously. I'm not an attorney, but I do give business advice. And one thing I say, I'd love to get your opinion on this.

33:02 I deal So many people don't have the old title in their names, which I know means they don't either they haven't funded the plan or they don't have a plan. One of those is true, and that's a disaster. And so I say to people because many people don't want to spend the money to get a proper estate plan, I say to them, "Well, you're better off 90% of the time with a bad plan than you are with no plan because at least a bad plan is a problem until it's litigated, but at least it's in an estate and or in a trust and can be transferred and you can move things a little more easily and efficiently versus no plan, you're just asking for trouble." so, where would you stand on that? Better to get Cuz I just want to get people moving, and once they do a bad plan, they can always then get it, you know, done with a proper estate planning attorney and bring it in and have the whole thing redone, but they've already got into the motion. As a salesman, I want my customers in motion. What's your thought on that?

33:55 Yeah, I mean, one of the things I will say is, you know, where my heart really goes out to the estate planning community is I'm a recovered planner, and I say that I only say that to mean I did it for several years because one of my partners and mentors who headed the group at my old firm made me do it because he said that if you're going to litigate my cases, I need to know that you know what I know. So, you need to know how the bread is baked. So, he made me go out and get clients, and we would do the intakes, and we would do the drafting and the funding, and he taught me administration as well. And I owe him a debt of gratitude. He was an incredible person to me. But I think, you know, what I learned through that is just how difficult it is to get people to do proper planning, right? And it's not necessarily a cost thing. It can be that. It can be a time thing, you know, if you're a busy business person, right? You may not want to spend the time to do this. And I think one of the comments that I heard more than once from some very sophisticated people, the comment was, "What do I care? I'm going to be dead." Right? Which I thought was pretty macabre. And you know, I came to respond to that with, "Well, look, you're spending all this time building this legacy, right? This legacy business for your family. You're spending all this time mentoring your family, raising your kids, you know, all these things. And when you pass, do you want that legacy tarnished by the fact that you didn't do your planning?

35:32 And now they're embroiled in, you know, a probate administration or some other issue because you didn't take the time. You did all of these other things, and then you left this mess for them." You know, ensconced in all of that courtroom stuff. And that seemed to resonate with them, but I mean, the reality is a bad plan may be better than no plan. It depends on how bad the plan is.

36:01 Yeah, of course. Really bad planning, right? Where I mean, one example we saw trust that had no successor trustee provisions. So, what was going to happen after mom and dad died?

36:13 Right. It wasn't that there wasn't anybody named. There was just no provision. They were just the initial trustees, and that was it. There were no beneficiaries after mom and dad. So, what was supposed to happen to all the money?

36:27 Right. What was going to happen to their house? It was all going to go to probate because there was no provision for what was going to happen with the assets. So, you know, a bad plan can be

36:38 Well, okay, real that's a really bad plan. Really bad plan. I'm just talking about bad, not really bad, of course. So, obviously, you know, must be definition, you're like looking for cracks and crevices in plans when you're doing litigation. I mean, I've been, you know, in consult with attorneys and we go through stuff and do some research and things. You know, you're looking for cracks and crevices, but at the same time, I'm sure there's one or two most common mistakes that you see that open the door for litigation. What would you say are one or two of the most common mistakes that, if you could wave a magic wand, your clients or your staff members have plans or your whatever would avoid. What are one or two things that you think that people make too often you say, "How does that happen?"

37:22 I think from a from a drafting standpoint, too much reliance on forms as opposed to just doing the review and finalizing the editing part. I mean, the number of documents that we've seen over the past three decades that have children from another family as the beneficiaries, right? The spouse has the wrong name, the distributive provisions are wrong. You know, there are just things in the document that don't belong there, right? It's obviously, you know, not coming from, you know, your white shoe firms or even the smaller firms, you know, the people that we work with who are just really smart and diligent, but, you know, there are a number of people out there who just dabble in estate.

38:10 Yes. Right? It's part of their practice or it's one of their 10 business lines. And, you know, that's one of the most common mistakes. And I think one of the others that really leads to a lot of confusion amongst the consumers clients is the administration of a trust after the first spouse passes. And this is not necessarily a planning fail as much as it is a failure to explain planning and how it works. You know, whether it's an AB trust or an ABC trust depending on how old it is. And you have a situation where you have mom and dad, they build the wealth during the course of their you know, many decades of wedded bliss. One of them passes and now you fund the sub trusts, right? And a chunk of the assets go into the irrevocable trust or trusts and a chunk of the assets go into the survivor's trust and the surviving spouse can do whatever they want with the survivor's trust assets. But there are limitations, qualifications, etc. On what they can do with the irrevocable trust assets. And what I found is that there are very few people who understood that when they did the plan.

39:30 Right? There are more people who understand it when the first spouse dies if they go to a good planner administration lawyer who explains to them that you can't just use these assets as though they're your own, right? Because you have these limitations and you need to do things according to what the trust requires. Because those sub trusts are intended to comply with what your spouse wanted, right? And the survivor's is for yours. And that's really confusing for people. And you know, the number of cases, I would guess anybody in this space would tell you the number of cases where assets were not allocated correctly. Right? Everything's just stuffed into the survivor's trust or assets are taken out and used as though they would have been while you were married, right? And from a human standpoint, you can understand that, right? You can understand this was always my money, why is it now not my money, right? I can't do what I want with it.

40:30 Right. And the answer is it's not. Half of it is, right? Or whatever percentage is, but the other half, you know, you need to follow the rules. It can create problems, especially with a you know, a second spouse.

40:43 Right. Who and you got kids from the first marriage, right? Who are you know, watching it because you know, they want their inheritance, and that's understandable cuz that's what their parent intended for them. So, I think those are probably two of the issues that we see a lot, and a myriad of all kinds of other issues.

41:01 And the and the next spouse's kids, that always just creates more potential for drama because they're not as invested in the deceased as you know, they're only half invested or whatever percentage, and or only a few years before they pass, so it that is just a recipe for challenges. I know one of the areas every one of your practice areas, and I know it's essential probate litigation, is elder law. And it's just such a common thing as a real estate agent, I deal with all the time, where somebody will say, "Hey, my you know, my dad had this property, but all of a sudden this caregiver shows up, and everything's deeded into some trust or a will, and I've been involved with some where we have to go out and contest the will, not me, but the get attorney and contest the will, or prove it was a forgery. And at the same time, you know, I can imagine elderly people when the family abandons them or doesn't you know, doesn't spend regular time with them, might need somebody physically, and that could lead to emotional connection. So, you know, where's you know, and people call and they always assume, well, this person's evil. Maybe they are. Maybe they're not, you know, it's one of those things. So, talk a bit about number one, those kind of cases, and what are things that families can do to help protect their elderly parents so that their decisions are thoughtful rather than maybe emotional or informal or fraudulent?

42:22 Yeah, I mean, this is such an important topic though. I'm glad that you raised it. It's something that I speak on frequently. I speak regularly with Paul Greenwood, whom you may or may not know. He used to lead up the elder abuse section of the DA's office of the San Diego County District Attorney's office, and he speaks on the criminal aspects, and I speak more on the probate and civil side. But, look, we're in this silver tsunami. There's upwards of a hundred trillion dollars that's anticipated to be passed onto the subsequent generations. Meanwhile, you've got people are living longer. The incidence of Alzheimer's and other dementias, I sat on the Alzheimer's Association board here in Southern California for a number of years, is going through the roof. The incidence of early-onset Alzheimer's going through the roof. So, you have a lot of people as a result of those issues living longer, higher incidence of dementias. You have people who are compromised, right? And we're more scattered as a familial culture in this country particularly than we've ever been. So, you have people who are living

43:37 Yeah, you have people as you've described who you know, they grew up here, they raised their family here, their spouses passed, their kids are scattered, you know, living in South America, Europe, Australia, Canada, across the country, what have you. And they're here and they're having a good life, but then they get a little older, and they need help. So, they reach out to their community, and it's I mean, we've seen it in affinity fraud from the churches, the synagogues, the mosques, etc. You name it. You know, we've seen from the professional communities, lawyers, paralegals, document preparers, real estate agents, financial advisers. We've seen doctors, dentists, the HVAC guy, the pool guy is a classic one. And then the caregivers, right? Who Whoever has exposure to this person who seems to be isolated, perhaps is compromised in some way, shape, or form, is just alone and they need attention, right? And this person's giving them attention. And they're happy to have the attention. You said like maybe they're evil, maybe they're not. And I think some of these people are, some of these people are not, some of these people are both, right? Perhaps they're well-intentioned, but perhaps those intentions turn over some period of time where they see like I'm the only one here. I'm the only one helping. I'm the only one who brings them food. I'm the only one who I'm now taking them to their doctor's appointments and there's a certain entitlement that develops

45:12 Yeah. Over the course of relationships. Some for some it happens very soon. Some it just happens over time. And that just gives these people who are going to take advantage of our loved ones the opportunity to take, right? And you asked what our advice is and Paul and I when we speak on these topics, you know, we give the same advice, which is stay involved, right? Stay involved with your family, right?

45:40 Yeah. Don't just call, right? We have the technology, FaceTime, Zoom with them, right? Do it regularly, right? Ask questions, right? I think we tend to shy away if, you know, mom or you know, mom or dad have a new friend and it's like, Who's your new friend, right? Who is that in the background? You know, Zoom or FaceTime gives you the opportunity to also see what their situation is, right? Yeah. You're zooming with them or you're FaceTiming with them and you see they're hoarding. Right? Or you see that the dishes are piled up in the sink yeah, week after week after week and it's the same dishes, right? Those can be indicia of perhaps they're not well, right? Gosh, mom was always super neat, right? As a kid, you know, if we drop something she was on us to pick it up and put it in the hamper, right? And now her house seems disheveled, right? Or they seem right? It gets so much more out of that kind of interaction this kind of interaction just from a phone call. Utilize their community. Who are their friends? Can they go do a wellness check? Can they stop by? Right? And just don't be afraid to be involved. They you know, privacy is something that's so important here in this country and our culture that we allow it to be the tail that wags the dog when it comes to these situations, right? I'm always honored when people call us and they need help protecting you know, their mom, dad, grandma, grandpa, auntie, uncle, whoever it is and they say, you know, we don't know what to do. These are the things that we're concerned about and we can talk them through and have a strategy whether it's a you know, elder abuse restraining order or conservatorship or whatever it might be to be able to help them protect their loved one and you're just going to see an awful lot of this cuz you know, these demographics you

47:39 Yes. Silent generation, the boomers we older Gen Xers, right? Are getting to that place and we're not going anywhere, right? And it's only going to lend itself to more abuse. So, we all need to see something, say something, right? Keep an eye out on your neighbors. I had two neighbors who were 94 both. The cutest, sweetest couple, but man, I got to tell you, we neighbors around that house, we watched them like a hawk. If there was anybody who came to that house that we didn't recognize, somebody was out there trying to figure out who they were and what they were doing and

48:19 Right. You know, were they were they legitimate or not? And that's again, that's community, right? And we all have that obligation to take care of each other.

48:29 I think we do. You know, it's funny you say that. I grew up in Orange County, very small city, and we everybody knew everybody. Everybody knew when there was somebody different, we all paid attention, like you say. I live in West LA and I do the same thing. Literally this morning, there's a there's a beautiful, brand new home being built, and there's a woman walking around, and the fence was open, and you know, even though she looked kind of normal, you know, compared to a criminal, I still want to find out who she is because I don't want a squatter living on my block in this case. She asked me, "Well, why do you care?" Well, cuz I live down the street, and if you're if you're sitting up to squat in the place, I want to know about it to prevent it, cuz I you know, I live here. My kids live here. My grandkids walk right by here.

49:07 Yes. And I think the same with elderly family that when it's so funny how entitled people call me or you, I imagine, complain about, "Well, the caregiver is ripping me off for half a million dollars, a million, or two million dollars." And I say, "Well, you have When's the last time you saw them?" Like, if you're planning to inherit half a million dollars, a million dollars, why not just go there every 90 days or month or week, you know, look at it like it's an asset you want to protect, not to say that you shouldn't care about the person, of course, first, but if you can't get yourself to that, at least go take care of your asset, and don't cry about it when it goes away. It's like anything else that you have some obligation, and I think that if you can take the attitude, "Okay, I'm protecting the asset by taking care of the person." If that gets you to doing to being human, well, okay, that's what it takes, then do it. Then be human to them. And I can just say in you know, personally, I years ago I went through this and we you know, we were so hard with two transactions in my life and made that commitment and I just urge my clients, if you're really worried about it, if you're really rather than hire Scott as attorney after the fact, why don't you go to grandma's house once a week, once every other week and sit down with her and as Scott said, look around and see what's there and meet the caregiver and find out who her family is. Let her know that you're paying attention because I just felt that's time well spent on human level as well as a financial level.

50:26 I was just going to say often times the best legal advice is the best human advice. I think your advice is well taken and to be followed. Yeah, I mean, I mentioned earlier, you know, you give to get and you give because it feels good, right? You give because you want to help people. And doesn't come back to you in spades, right? It just it really does. It's the way the universe works. It's the same thing with these situations like if you have some sort of expectation, fine. But the reality is this person's bestowing upon you this gift because they care about you, right? The least you can do in return is care about them and show them that they mean something to you.

51:16 Right. And at bottom, I will tell you that the vast majority of people that we work with, those are really the things that are most important to them is the memories they have of the

51:29 Yeah. The things they did together, Right. Right? And this process that is used that we help them through are really just a stain on those memories and that's why they want to get through these things, right? Because they want to get back to what, you know, their memory was of their mom, their dad, their family, whatever it is. So, to be able to put them in a place where they can move past this hiccup, right? This in the road of their path of life.

52:00 How does guy You know, I had this episode teed up and probably litigator people expecting a barracuda and here you are at the end showing yourself to be a softy.

52:09 Oh, don't let my Don't take my kindness for softness. I love setting them up and knocking them down. It is the chess match of litigation. Being strategic, being tactical. We are not table pounders, right? We are not yellers and screamers. We are masterful technicians and we take great pride in executing on those strategies.

52:36 Good. For the win. So, no, while I am a human who loves and values people and relationships,

52:45 Who would have thought? Do not Do not for one second think that I will not rip the face off of someone who ripped their face off of cuz that's what we do.

52:55 I say to people all the time, don't mistake my politeness for being weak. I'm polite as long as I can be, but at some point I have to stop being polite. Sorry, not sorry, so

53:05 Sorry, not sorry. Yeah, look, we there In these cases, there are only two outcomes, right? Either we work together and collaborate with the other side to get to a result or we club you over the head through litigation, right? There's really only two paths. All right? And I'm not a magician, right? I can only deploy my legal tools to get results and it is my preference for my clients because it costs less and it takes less time, right? Less emotional toll. My preference would be to resolve cases and our goal is to try to do that for them. Obviously, for the win. But, we do that in a side-by-side track because you need to be able to get to that result if you can't solve it. But, ultimately, there are only two paths, right? And we go down those paths simultaneously because, ultimately, the last thing your client wants is to not get to a result that we're able to negotiate and then have to start that process of going back because now the road's longer.

54:12 Right. And that emotional capital that people run out of nine times out of 10 before they ever even get stressed about the financial capital, it's going to be gone, right? And they're going to be frustrated. So, we make sure that we're taking the path together.

54:29 Okay, so we won't assume you're a pushover just cuz you're a polite guy. I appreciate I appreciate your time. Look, I know I've gone a little late here, so I really appreciate your time sharing with us today. Scott, look forward to seeing you again. For anybody who wants more information, Scott is the founding partner at rmolawyers.com. And on the screen is the phone number and the email. And they have on there free consultation if you have questions regarding litigation in the probate space or maybe trust or probate administration litigation. Scott, thank you so much for your time today. I really appreciate it.

55:00 Yeah, it was really fun. Thank you, Bill. And for the rest of you, this is Probate Weekly. We get together every week and typically interview attorneys in probate litigation, or estate planning, and/or vendors. Continue the conversation with our Facebook group page called Probate Weekly. Go there if you have questions. I didn't get into Scott also has offices in Texas, but we are This platform is national. We have real estate agents and attorneys from across the country. So, if you have questions in different states, put questions there. Just make sure you mention the state. Or if you're looking for referrals either for a Realtor® or an attorney in those areas or estate planning, please let us know. I'm Bill Gross at Bill Gross Probate on social media. And as always, if I can help out, please call, text, email. If you like this, please like it, subscribe if you like the channel. As always, make today your best day ever. Thanks for