While the importance of thorough preparation is well-known to estate planning attorneys, financial advisors and probate lawyers, it's inevitable that such plans are not always made. When an individual dies intestate, it can obviously lead to an array of problems in probating his or her estate. And even with a flawless Will, the process often turns up unexpected and daunting challenges. One fairly common occurrence is when a Will identifies heirs whose whereabouts are unknown.
The frequency of such cases has created a demand for experts in the field of tracing genealogies and establishing or reestablishing lawful claims to estates. In an area riddled with upstart firms, the looming question that remains is who to trust when dealing with the complexities of a genealogical search.
The answer is at once messier and simpler than it at first seems. And because a Will often involves multiple parties, it is imperative to know you can trust the firm you have selected to look after your interests in a genealogical search concerning a probate matter.
The fact that the process may involve multiple parties can serve to obscure the issues, as your specific needs and requirements will be different depending on your perspective. You may be asked to represent an heir contacted by a genealogical services firm. You may be a trustee or a lawyer representing a trustee. Your position in relation to the case can color your perception and will likely influence how you choose to proceed.
But when it comes to choosing which firm to enlist, some considerations are common to all involved. Keeping focused on these considerations will help in sifting through the mountains of sometimes contradictory information out there and easily pick out what is really pertinent and statutorily correct.
Overemphasis on billing methods, a red herring
There has been much public chatter lately about genealogical services and how to go about choosing the right firm in probate matters involving heirs that are not easy to locate. Some have even attempted to boil down choosing a firm to issues as cut and dry as the question of fee methodology, whether the heir or the estate should pay and on what basis (e.g., contingent, hourly, per diem, flat fee or even by generation, one of the most ridiculous positions imaginable, which favors the genealogist and usually winds up costing the estate more). Not surprisingly, many of those who make blanket arguments against contingency contracts or hourly fees are themselves associated with firms that solely use a payment method which may not be in the best interests of the estate.
Again, the option you may prefer depends largely on your perspective, or role in the case. An example of where contingency may be the preferable option is an attorney with the responsibility of tracking down missing heirs who wishes to do so without obligating the estate. Often lawyers at first decide to use an in-house paralegal only to find out later that the assignment is too complicated. In the process, fruitless billable hours were added to legal fees, which later may have to be justified.
Finally, and after a considerable amount of elapsed time, the lawyer is forced to outsource the search. Because attorneys have the option of utilizing the services of such firms without any out-of-pocket expenses or billing the estate, while at the same time complying with all legal obligations to find missing heirs, this option can provide a win-win situation for all involved. In a manner of speaking, the missing heir is paying from his own share, the costs of finding him without diminishing the gross estate.
In the end, the question of payment is a valid one, but should not be over-emphasized. In reality there is no good one-size-fits-all approach for these matters. Each case is unique, involving real people and endless possible combinations of circumstances, personalities, wishes and requirements. And these situations can be complicated even further when foreign research in various languages becomes necessary.
The most important thing to do when it comes to making a decision as to which firm you will choose to help navigate through these perplexing waters is to make a clear assessment of the requirements of your case. After identifying those areas which concern you most and determining how to best proceed, a bit of background research into the firm you are considering will also be needed, including their years in business, their reputation, references and experience.
Focusing on what's important
Some questions you might want to ask yourself before settling on your decision as to who to employ might include: Does the firm have comprehensive, all-around experience in the field? Which types of cases has the firm you are considering taken on? What types of clients have they represented? Do they have a long history and a track record that speaks for itself? In short, are they qualified to represent your interests?
It is more likely that a firm with a lot of experience handling high-profile cases, or those of large companies, is more likely to competently and efficiently handle yours, and in a more cost effective manner, as there is no learning curve or time to develop on the ground contacts , here or abroad.
Best gauge of quality: reputation
The internet age has made it quick and easy to set up a business in some sectors. Taking a risk by using new service claiming to "do it better" may be acceptable if you're shopping around for a dating website. However, when it comes to matters as weighty as locating heirs, honoring the wishes of a decedent, fulfilling the requirements of the law and having a court recognized "expert" on your side, it is very important to rely on the real reputation of whichever firm you are considering.
While this may seem fairly obvious, the information overload of the internet age can sometimes obfuscate issues that should be clear. When taking on decisions that can have great and long-lasting effects, involving parties that may or may not be known, whose whereabouts may not be readily available, or whose reactions and cooperation level may not be known, it is essential to have confidence that the firm you go with knows the terrain and has a long record of operating successfully in it. There are simply too many variables to risk going with the unknown.
Experience = resources
There are some things that simply cannot take the place of experience. This means not only familiarity with laws of different states, territories and nations, but also a familiarity with those acting bodies, governmental or other, that will have sway over your particular case. Experience translates into resources that are unavailable to firms that do not have deep roots in the genealogical profession. When enlisting a firm with wide networks of contacts across the US and around the world, these resources are put to work for you, and they often prove invaluable, especially in the most difficult of searches.
Certain firms may promise low prices for hourly services, but in terms of efficacy, there is no amount of hours that could substitute for years of building working relationships, connections and knowledge. While it's hard to tack a value on such resources, they are absolutely essential when it comes to choosing who you will trust to execute the decedent's Will and fulfill the letter of the law, while simultaneously giving you and your firm peer excellence.