October 19, 2012

Lawyer Guarantees - A Myth

Unicorns are not real despite whatever you see, hear or read

When I have been retained by a client, a common question I receive is whether I can guarantee a result or particular outcome. The short answer is no, I cannot guarantee a result. Cal Rules of Prof Cond 1-400.

Many clients are dismayed to hear that attorneys cannot guarantee results. Their rationale is that why pay an attorney an appreciable sum of money yet receive no certainty that the attorney will achieve the desired result. In today's society results matter and that notion affects the mindset of clients whether they are buying a home, selling a car or retaining an attorney. Clients want the legal system to be linear whereby if they follow the perceived right steps the desired result will come. Unfortunately the legal system does not work that way.

One common example in estate planning of where clients would like for the legal system to be linear is in regards to a Heggstad petition. 

A Heggsad petition is where the trustee seeks a court-order to have a home be transferred into a trust because the deceased settlor (the person who wrote the trust) failed to appropriately transfer it, i.e. through a deed, when the settlor was still living. 

What typically occurs is that the successor trustee is told that they are now in charge of the trust. The trustee then begins to look for trust assets to distribute. The trustee will see that title, i.e. the deed, to the settlor's home is listed in the decedent's name. In order to sell the home, a title company will customarily insist that title be held in the name of the trust in order for the successor trustee to sell it. Thus, instead of title being held by John Doe, the title company would want title to be held as John Doe, trustee of the Doe 2012 Revocable Trust. 

The solution to this problem is for the trustee to file a petition under Prob C § 850(a)(3) in hopes that a judge will order that the home is in fact a trust asset. The best evidence to support the petition is the listing of the home on a schedule of trust assets. The schedule of assets is almost always attached as an appendix to the trust. The term "Heggstad petition" is the common method to describe a Prob C § 850(a)(3) petition. 

So over the years, various people have come to me with a Heggstad issue. Their deceased parent wrote a trust but never formally transferred the home into the trust. They then tell me that the schedule of assets lists the home. I tell them that this is a solid evidence of the parent's intent to hold the home in trust. However, I make it explicitly clear that a judge is not obligated to grant a Heggstad petition despite the evidence at hand. In other words, I cannot, much like any other ethical California attorney, guarantee that the Heggstad petition will be successful. Naturally this disappoints clients who sometimes make the reflexive response that a good attorney should be able to guarantee results. Well that is not the case suffice to say.

Granted a lawyer will zealously advocate for a client, but they should be aware that guaranteed results do not exist in law. If they have this knowledge before meeting with an attorney, this will foster a better relationship because the client is already aware of the lawyer's limitations.