Clarklake, MI asked in Estate Planning and Probate for Virginia

Q: Need help/guidance in estate claim/probate claim in VA.

Assistance with an estate situation that has in VA. Best of friends and also involved in formal business since 2007.

Brother is listed as executor of a will that was filed. The will is very vague drafted in 2009. It mentions nothing regarding our business relationships over the years.

I was just informed that no probate was filed, so I can't make any claim(s) via probate. This estate had well above the $50K limit in assets needing probate, however the executor has failed to file. Basic terms listed in the will filed have not been met.

The total of my claimis only about $13K and the estate easily had 6 figures (possibly in cash alone from bank accounts).

I had contact with the brother very shortly after this death, but now no communications which he is clearly avoiding now.

What would the steps be to file a proper claim and how much would be considered a reasonable amount for an attorney to charge for such a case?

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1 Lawyer Answer
Richard Sternberg
Richard Sternberg
Answered
  • Estate Planning Lawyer
  • Potomac, MD
  • Licensed in Virginia

A: It is difficult to pursue a claim as small as $13,000 with a claim involving a declined probate. It isn't as simple as a General District Court case, because it needs to start with the opening of a probate and might lead to a contested and hostile petition for probate by you in spite of not being named and holding only a small interest in the estate.

There is a rather recent legal intervention that might help you called limited scope representation in which the lawyer would undertake representation in limited bits that are economically feasible. The bad news is that my evening quick research indicates that the enabling amendment to Rule of Professional Conduct 1.2 and Legal Ethics Opinion 1874 circulated April 16, 2018, has not been adopted. The good news is that, traditionally, pre-litigation efforts don't require a limited scope retainer. You might retain counsel to review the file and draft a demand letter. That might persuade the executor to file his petition and the Will, particularly if drafted skillfully implying that you are prepared to file a petition for probate as a prospective beneficiary. If the demand doesn't do it, many lawyers before the limited scope debates would have agreed to be retained as an attorney-advisor to draft your filings with the Commissioner of Accounts or the Probate Division of the Court. I'm hearing that some courts are considering such efforts dishonest in concealing the lawyer's identity and involvement. I strenuously disagree with that, but I think it'll be a more expensive issue, because I'd want to research that point with the Legal Ethics Committee before going that far. But, you should be able to find a lawyer to prepare a demand letter easily, and that might work. Alternatively, you might try a pro se meeting with the probate clerk in your circuit.

Good luck!

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