Probate attorneys are aware of the many stages of grief: shock, denial, guilt, bargaining, anger, depression, and acceptance. During the probate process, some members of the estate will be navigating the grieving process at different stages and in different ways. As a result, and for various other reasons, in certain instances it can be more challenging for attorneys to reason with their clients or the estate beneficiaries. Some clients may be overly demanding, some pushy or rude, and others may just be argumentative, contrary, or pretend to know everything. The decedent’s loved ones will handle grief in their own individualized way, but sometimes their way of handling the grief causes bumps in the road. What was once an uncontested probate procedure is now facing years of contested litigation.
Here are some practical tips that can help you avoid, lessen, or solve complicated issues which can arise throughout the probate process.
1. Identify Your Actual Client
Which person, involved with the estate, is your actual client? Which of the beneficiaries should you be talking to and asking questions? This tip may seem elementary, but it is one of the most important steps you can start with when first taking on representation of a probate estate. It can be confusing since there are often many people involved. Put simply, your client is the personal representative or executor of the estate. This person may be appointed personally in the will, agreed upon by the beneficiaries, or appointed by the court assigned to the probate matter.
Difficulties arise when the beneficiaries are attempting to contact you personally regarding matters of the estate. However, you must remember your ethical requirements under attorney-client privilege. While you are attempting to move the estate through probate, to disburse to the beneficiaries, it is the personal representative that is your client, and you must not share privileged discussions you have had with your client to the beneficiaries. Additionally, it is important to advise the personal representative/executor of the attorney-client privilege, so they are aware they do not have to divulge any of the legal advice they receive from you to anyone else. However, some personal representatives/executors will choose to waive this privilege and will advise the beneficiaries of the legal advice you provided.
2. Investigate The Relationships Among The Beneficiaries
It is a good idea to ask questions in order to understand the types of relationships that are involved. Who are the members and how are they connected or related? Are siblings part of the estate? Have the members spoken about this matter? What are their thoughts, questions, or concerns, so far? While identifying the relationships may not help you avoid any disagreements among the beneficiaries, it can assist you with planning for them. Additionally, when you first meet the beneficiaries of the estate, it will be a good idea to take this time to observe their interactions with one another. Observing their interactions and body language will give you a good idea as to how their relationships are and whether you can expect any contentious disagreements among them.
A common disagreement that arises between the beneficiaries is when the decedent passes away without a will and the beneficiaries all have different ideas on how to divide the assets. One such example is real estate. Some of the beneficiaries may want to keep the property (for example, if it contains memories of their loved one). However, other beneficiaries may feel it is best to sell the property and divide the assets because they do not want to continue the upkeep of the property.
If you are able to spot potential disagreements before they are underway, it will be best to go into any meeting prepared to address all options that are available to the beneficiaries along with the pros and cons of each likely outcome. This can avoid miscommunication among the beneficiaries and help reach a resolution before the disagreement has begun.
3. Identify Whether The Will May Be Contested
Once the personal representative or executor brings you the will to submit to the probate court, it would be prudent of you to review the will and check for anything which would make the will invalid. Wills may be invalidated for many reasons, but an easy one you can spot at the beginning is whether the will was created pursuant to the applicable state’s laws. Typically, these are requirements that the will must be in writing, signed in the presence of two witnesses who also sign the will and are in the same room at the time of signing. However, each state has its own specific laws to determine the validity of the will and it is important to make sure it follows the rules in the state where you practice. If you determine the will does not comply with the state’s laws, then you will have to advise the personal representative/executor of the will’s deficiencies and the estate will have to be distributed to the beneficiaries under the state’s laws of intestacy through the court.
If a beneficiary (or beneficiaries) does not agree with the distribution of assets contained in a will, then the beneficiaries may decide to contest the will and allege the decedent lacked testamentary capacity to create the will or was manipulated through undue influence. You may usually be able to spot these issues based on the division of assets contained in the will. If you notice that one beneficiary is getting a substantially less amount than another beneficiary, then you may be able to predict the beneficiary receiving less assets will want to contest the will. It is important to note any potential allegations which may arise and can lead to an argument of undue influence or mental incapacity.
4. Identify Personality Types
Your client’s personality types will influence their behavior toward you and others. Being able to identify your client’s most dominant personality types, while responding accordingly, can assist greatly in achieving the best outcome. There are at least two different personality metrics that can help in this regard; Real Colors and DISC.
First, Real Colors measures personality temperament and assists when working with others. It is based on the personality type of Carl Jung and separates personalities into four major groups (Gold, Green, Orange, Blue).
Gold personality type traits tend to be loyal, dependable, organized, thorough, punctual, and remember facts while setting deadlines and wanting them to be met on time. With this in mind, make sure to give them opportunities to take and show responsibilities, to serve others, display leadership, and organize things or people.
Orange types tend to be witty, spontaneous, generous, optimistic, eager, and bold. They tend to have energy, bounce around to different projects or tasks, trek their own path, need stimulation, and don’t like following the rules as much as gold profiles. They also tend to be good at overcoming barriers and are out-of-box thinkers.
When working with Oranges, it’s important to challenge their imagination while celebrating their successes. This is especially when risk taking is part of the equation. Give them the opportunity to express themselves, take risks, act quickly, and use intuition.
Blue personality types tend to be good listeners and show concern for feelings. They have a tactful way of communicating and tend to dislike disharmony or conflict. They also like to talk about possibilities, relationships, and like to do new things.
When working with Blues, it’s important to reassure their self worth while recognizing their accomplishments. Remember to be empathetic toward their situation while believing and trusting them. It can also be helpful to let them show creativity while working with, mentoring, and communicating with others.
Finally, Green personality types tend to be more perfectionists while also being analytical, conceptual, cool, calm, and logical. They usually seek knowledge, facts, data, and understanding while looking for explanations and answers. It is no surprise then that they tend to make good researchers and tend to have a larger vocabulary than most. They can also argue both sides of a given issue and tend to like challenges to their thinking.
When working with Greens, it helps to give feedback on the quality of their work while recognizing their capabilities and ideas. Present accurate data while giving them the opportunity to explore options and analyze the information that is being presented.
In addition to Real Colors, the DISC personality profile assessment can also help when dealing with difficult clients. DISC stands for Dominance, Influence, Steadiness, and Conscientiousness.
Dominance types tread toward confidence, bluntness, outspokenness, being more demanding and a tendency to see the bigger picture. They are often called “The Winner”. “D” profiles also focus on shaping environments, overcoming opposition, getting results, and controlling outcomes. They are motivated by winning and success and don’t like being seen as vulnerable. They fear being taken advantage of but influence others by assertiveness, insistence, and competition. They value competency, action, personal freedom, and challenges. Their profile is sometimes compared to a “Gold” in Real Colors.
Tips for dealing with “D” type clients:
- Show yourself as a pro (shirts, logo, etc)
- Move fast
- Be prepared, professional, and limit your small talk
- Be brief and to the point
- Limit your use of redirects
- Match & mirror their dominant language patterns, both verbal and nonverbal – avoid showing signs of fear, hesitance, or weakness
- Start with the end in mind – tell them you want to “cut to the chase” then ask what it’ll take to get the deal done. Find out what they value in the deal early on so you know what’s negotiable and what’s not
- Demonstrate your ability to provide fast results
- Let them feel like they’ve won or that they have gotten the better end of the deal by giving them alternatives that work in your favor. That way they still feel like they’re in control but you still win – “We normally never do that but….”
- Find out the “why” behind their demands instead of confronting them, then craft solutions that work for you and them
Influencers trend toward persuading others. They tend to be more enthusiastic, optimistic, open, trusting, and energetic. They like to shape their environment and are sometimes called “The Enthusiast”. They are also compared to “Orange” in Real Colors. “I” styles are motivated by social recognition, relationships, group activity and taking action. They like expressing enthusiasm and are often described as magnetic, convincing, warm, and optimistic. In addition, they fear disapproval, being ignored, or rejection and value coaching, freedom of expression, and democratic relationships through promotion and energy.
Tips for dealing with “I” type clients:
- Be as open and as communicative with them as they are with you
- Form a real bond with them (be real/genuine, lots of talking)
- Let them know you’re interested in finding a solution that’s mutually beneficial – they want to know you have their best interest at heart
- Get them to see how doing business with you will positively impact the people they care about – “This will be awesome, stress free…”
- Use Social Proof – Show testimonials or stories of people you’ve impacted in the past
- Pat attention and acknowledge their feelings
- Don’t make empty promises or renege on your commitments
- Their susceptible to buyers remorse – go over everything very clearly and ask questions that reaffirm their decision
Tips for dealing with “S” type clients:
- Listen intently – take genuine interest – form bonds – don’t rush into presentation – allow lots of time for family/hobbies talk
- Show them your credibility/trustworthiness
- Assume the role of an expert – Guide them through the process, like an advisor would – don’t rush them – Move at their pace
- Reassure them regularly and allow them to include others in the decision making process
- Use facts/figures but don’t overwhelm them
Tips for dealing with “S” type clients:
- Build rapport – expect conversation to be more serious or formal – don’t force a connection that doesn’t develop naturally
- Never rush them – they have their own deadlines which revolve around researching the options – be prepared for a longer close cycle
- Assume they’ve done their homework – You can lose credibility with them if you make assertions or claims without the data to back it up
- You’re unlikely to overwhelm them with information – be as detailed as possible with “how” you are going to help them – Provide testimonials from people you’ve helped in the past
- Do whatever you can do to reduce their sense of risk (help them or tenants move, extend closing period, write claus that they can extend 30 days if needed, etc)
- Be prepared to discuss contingencies if things don’t go as planned
5. Use SPIN Selling Techniques
SPIN Selling is a book written by Social Psychologist, Neil Rackham. It is based on a 12 year research project and focuses on four basic types of questions to ask your prospect. This approach is in contrast to dealing with prospects or clients by “telling” selling and/or presenting features or benefits to how you can help them. Instead, SPIN Selling has us focus on asking strategic questions so that we can control the conversation, save time, and solve problems as effectively and efficiently as possible. SPIN stands for Situation, Problem, Implication, and Need Payoff.
First, Rackham has us focus upon the four basic stages of a sales meeting (or call) while also drawing our attention to our prospect’s “implicit need” (as opposed to their implied need or initial want). The four basic stages are; 1) Intro/Rapport Building, 2) Investigation 3) Demonstrating Capability 4) Closing/Getting the Contract.
Following this formula with legal clients can help make things go more smoothly. However, for the purpose of this article we will focus on Stage 2 since this stage deals with how you can control the conversation with the client and guide your communications toward smoother outcomes.
Situation questions are just like they sound. We ask questions to investigate what is going on with our client’s current situation. What is happening right now? What has led up to this situation? What parties are involved? In this stage, it often helps to begin the conversation by asking the client if it is “OK” to start by asking a few questions. Once they agree, this gives you the ability to “take the steering wheel” and prevent as many conversational pitfalls as possible.
Problem questions focus on the problem (or problems) your client is facing given their current situation. Here we want to investigate the major issues that need to be resolved as well as any minor issues that might arise. For these types of questions we are looking to “find the pain”.
Implication questions pertain to the consequences of inaction. Another way of putting this is that these types of questions focus on asking the client what the picture would look like if they continued down the current path they are on (and/or if they did not do something to solve the problem). We might ask, “What would it look like if you didn’t sell the house?”
Need Payoff questions are designed to get our client to “sell themselves” on our solution to their problem(s). We might ask, “If I was able to do XYZ, how would that help your situation?” or “Would it help if we were able to solve ABC problems by doing XYZ?”
Keep in mind that these techniques work the best while showing genuine compassion and concern for your clients, along with any other beneficiaries involved, and their interests. As a probate attorney, it is important you focus on maintaining a smooth probate process while preventing any difficulties before they arise. To help keep your focus on legal work, consider partnering with a reputable company to help with the non-legal services your clients may need. Our consultants at Mourning Services are here to help, as well as ensure the probate process is a stress-free and efficient one. Contact us today to learn more about how we can help your clients succeed while increasing your bottom line and reducing friction. We are here to serve you, your business, and your clients with compassion and integrity.
Every firm has it’s share of difficult clients. Some clients can be overly demanding, some pushy or rude, and others just pretend to know everything. We hope to share a few practical pieces of wisdom that can relieve the tension and make things a bit easier on both sides.