028: The Challenges of Probate Court and How to Navigate Them – Scott Rahn

Marty Stevens Heebner:
Probate courts are insanely busy places, and the cases there are complex and notoriously emotional, because they often involve contested estates, as well as fraud and elder abuse. If you find yourself heading to probate court, working with a top-notch attorney who specializes in probate is crucial. And today, I get to talk with one of the finest, Scott Rahn, one of the founding partners of RMO LLP. I promise you'll be fascinated.
Moving your mom or your dad, or yourself, isn't just about moving things from one place to another. It is much more complicated than that, as are so many things having to do with later life. How to Move Your Mom and Still Be on Speaking Terms Afterward provides in-depth conversations with professionals, older adults and their family members, who share their stories with warmth, understanding and humor. I'm your host, Marty Stevens-Heebner, and here you'll find answers to many of your questions, as well as different perspectives that I hope will inform and inspire you. Scott, thank you so much for joining me today.

Scott Rahn:
Pleasure to be here.

Marty Stevens Heebner:
Scott is very impressive. He is the founding partner of RMO LLP, a national probate litigation law firm focused solely on probate disputes, and we'll go into all those kinds of things in a moment. The news media loves Scott, and for very good reason, he's very articulate. He's been featured on the Today Show, the BBC and in Vanity Fair magazine, and that's just to name a few. And he has so many accolades, and here's just the short list. Scott's made the Best Lawyers in America list, and the LA Times called him a legal visionary, and I think that's the most remarkable one, being a visionary. I'm just going to start with asking you about your favorite memory of your grandparents.

Scott Rahn:
They were so influential in my life. I spent every summer, almost every break, weekend holidays, with my grandparents on their dairy farm. One of the many things that stands out is hours upon hours of playing cards, all different kinds of games with my grandma and my grandpa, but my grandma would get so flustered when we would win that she would call us names. Big pig, sow, were some of my favorites, but such amazing memories. I'm very lucky to have been so close with them for so long.

Marty Stevens Heebner:
Competitive grandma, I get it.

Scott Rahn:
Apple, tree, as some would say.

Marty Stevens Heebner:
I think that's right. My mom was a wizard at gin rummy. So fun. I really want to give people a sense of what sets probate litigation apart from other legal matters involving older adults and their families.

Scott Rahn:
Probate litigation is essentially any dispute that involves inheritance. So, anything that involves passing your affairs, your estate, your legacy to your loved ones, whether it's a will or a trust that comes into play, whatever the mechanism is, somebody thinks they're entitled to something that somebody else disagrees with. We come in and we help the parties and help the court understand what's really going on here, what's supposed to happen, and get the case to a result, whether it's through negotiated settlement, mediation, perhaps with a retired probate judge, or, when necessary, taking the case to trial. We are true blue trial lawyers, specializing only in probate litigation matters.

Marty Stevens Heebner:
Just so folks know who aren't as familiar with attorneys and that sort of thing, litigators fight for you. It's not like drawing up an estate plan or putting together a trust. Some people do both, but Scott and his amazing firm, RMO, they go and fight for you. When it's time to be in front of a judge, he's there for you, and so are his colleagues.

Scott Rahn:
We get an opportunity to help people through a really difficult time in their lives, where either they've lost somebody they love, or in the case of a conservatorship or a guardianship, someone they love is compromised, and there's a problem. Something that was intended regarding their loved one or their loved one's legacy has been upset, and we get to come in, we get to hold their hand, let them know it's going to be okay because we have a plan. We've done these cases for a long time. We help develop a plan and execute on that plan to leave them in a better place than we found them. It's very rewarding. It's one of the many reasons why I love what we do.

Marty Stevens Heebner:
Is there any chance we can hear about a case or two that you've worked on?

Scott Rahn:
I could blend any number of them into a single case, where you have mom or dad pass, and they have either a stepparent or there's a child who feels like they weren't provided for. They have a certain sense of entitlement, and they should have been receiving more than what they're getting, or perhaps they've done some things to ensure that they're getting more than what their fair share is. We have the opportunity to come in and dig into, what is it that Mom or Dad really wanted? And the intent of that person at the time that they created the documents that were intended to govern their estate and how it was going to be handled and distributed is really what matters.
We do the diligence, we do it early, find out what really went on here, so that we can advise our clients, so we can inform the other side, and hopefully put the case in a place where we can bring the litigation to a close sooner rather than later. There are all kinds of fun and crazy fact patterns that we see all day, every day, whether it's a will contest or a trust contest or a breach of fiduciary duty claim.

Marty Stevens Heebner:
And what does that mean? Breach of fiduciary.

Scott Rahn:
If you're somebody who's in charge of handling someone's affairs after they pass, you owe a duty to all of the people who are supposed to receive that estate, and that duty is known as a fiduciary duty, whether you're the executor of a will, or a trustee of a trust, or a conservator of a conservatorship estate. And it just means that you have to do what's in everybody else's best interest while you're managing that person's estate and affairs.

Marty Stevens Heebner:
You can't favor anybody, including yourself.

Scott Rahn:
You can't favor anyone, certainly not yourself, but you also have a duty to do what the deceased person intended you to do. We had a situation where we represented a young person whose mother passed, and had left her sister in charge of her trust, and the trust provided that her home was to go to her daughter, our client, after she passed. And for some reason, the sister, our client's aunt, didn't want to give it to her. She was going to sell it against our client's wishes. So we had the auntie suspended, and there is a removal petition pending, and we secured the house for our client.
But there are all kinds of, interesting, we'll say, decisions that people make when they're put in charge and it's often that we hear, usually from the other side, that, "I'm in charge. What I decide is what's going to happen." And yes, to a certain degree, but you're always guided by the document. It's what the person who created the document intended you to do more than it is what you want to do. Some people don't necessarily understand that, but we've got a pretty good track record of helping them get there.

Marty Stevens Heebner:
Especially with anything that has value, whether it's cash, real estate, you have to act in the best interest, usually of others as opposed to yourself. But yeah, it's interesting how people miss that part sometimes.

Scott Rahn:
They do. They do.

Marty Stevens Heebner:
What's distinctive about what you do, Scott, and your law firm, with regard to probate litigation, that sets you apart from other firms who might handle it?

Scott Rahn:
I simply believe in my soul that we do a better job of taking care of people. We're oft to say here at RMO that if you take care of people, the rest takes care of itself, and our core values reflect that. The first is lead with empathy. We're here to take care of people. The second is be authentic, do the right thing every time, regardless of the consequences. The third is we're stronger together. We're here to elevate and celebrate our teammates, our clients, our communities.
And the fourth one is zealous efficacy, and it's a play on that old legal adage, zealous advocacy. Because what we've seen over the course of the past couple decades plus that we've been practicing is oftentimes you find lawyers who are zealous advocates. They're out there advocating for their client, but it doesn't always amount to efficacy, meaning, they're out there pounding the table for their client, but the results they're seeking aren't necessarily what's best for their client. So, we rail against that, and the bad lawyer jokes about the lawyers being the only ones who make any money. We really take seriously our duty to keep an eye on our client's bottom line, keep an eye on the results that we're getting for them, to really get them zealously efficacious results. Better results sooner.

Marty Stevens Heebner:
When you're working with the kind of attorney who just wants to run up their fees, and don't care if the client gets anything at the end of the day, because that happens, as opposing counsel, how do you try to move it forward so that doesn't happen?

Scott Rahn:
There are so many different tools that you can use. You can use the court's voluntary settlement officer program, and bring the parties to a third party who can help the other side understand exactly what it is they may get or may not get. You can go to a voluntary mediation with a retired probate judge who can tell the other side what they're likely to get and what it's likely to cost them, and help them understand they may not be getting the best result by pursuing the course of action that they're endeavoring upon. You can have the opportunity to sit down and negotiate with the parties, but if you've got a lawyer who's in the way, it's very difficult. Sometimes you have family members who just speak to one another and explain, "Look, we're only fighting over a couple million dollars, and if you continue down this path, we're all going to spend half of that, and is that what you really want?"

Marty Stevens Heebner:
And most people don't have a few million dollars to play with if they're inheriting, so those fees really stack up fast.

Scott Rahn:
Probably one of the most difficult parts of our job is when you find yourself on the other side of a party or an attorney, or sometimes both, who really aren't looking at this from what's going to be in the best interest of everyone involved, including them. It makes the job very difficult.

Marty Stevens Heebner:
Oh, I bet it does. When someone is approaching a probate attorney, litigating attorney, what questions should they ask them to get a sense of who they are?

Scott Rahn:
I think they should ask them if this is what they primarily do. There are a number of lawyers who are filtering into this space to dabble in this space. Civil litigators, real estate litigators, PI lawyers, et cetera, just don't understand the nuances of being in probate court. It has its own set of rules, separate and apart from the general code of civil procedure, or the civil code, or any of the other codes that you might come across in a different practice area. And things don't necessarily move the same way as they do in other cases. Not at the same pace, not with the same procedures. So if you're caught up in one of these issues, I think it's really important that you make sure that the person you're working with really understands the judges, the procedure, what's going to happen, when it's going to happen, what it's going to cost to get to each stage, and really be able to walk you through what you can expect and when.

Marty Stevens Heebner:
So, somebody could say they've been doing probate litigation for five years. Is there some way to check on that? Is it with the Bar Association?

Scott Rahn:
Sure. You can ask them to pull together a case list of the cases that they've been a part of. They can blot out the parties' names if the cases are ongoing. But most of these are public filings, so most of the filings are going to be public record. Ask them, "How many cases did you handle last year? How many cases like mine did you handle last year? What were the results of those cases? When's the last time you were to trial? What were the results of your trial? Have you done appellate work?" There is a niche practice in this space of doing probate appellate work, which we also do.

Marty Stevens Heebner:
What is appellate work versus regular, I'll call it, litigation?

Scott Rahn:
If the court gives someone a ruling, a decision, that they don't like, then you have the opportunity to go to the next level of the court system, which is the appeals or appellate court. That's the process that eventually will get you to your state supreme court, and then potentially to the US Supreme Court. But you essentially get an opportunity to ask a panel of appellate justices to look at your case if you think the judge got it wrong.

Marty Stevens Heebner:
What's the toughest part of your job?

Scott Rahn:
I think the hardest part is when you speak with someone and they've got unrealistic expectations. They want a result they're not going to be able to get. Emotionally, people often aren't ready to hear that. So, to be able to help understand the facts and explain to someone why perhaps what they're hoping for isn't something that they're likely to achieve, especially when they're already hurting, they've lost someone, someone's compromised, and they want a result. We can only work within the confines of the law. But oftentimes, people will come to us and we'll go through the background, we'll go through the history, we'll look at the documents, over the facts, and we'll talk to them about what the case really looks like. I like to say we do magic, but we're not magicians. If it's something where we don't think that we're going to be able to leave the client in a better place than we found them, we're not going to waste their time. We're not going to waste their money. We tell people how it is, and sometimes that can be really hard.

Marty Stevens Heebner:
People do, especially when they're emotional, have unrealistic expectations, usually because they don't understand the law.

Scott Rahn:
Correct. And I think we have a better mousetrap. We just have identified this niche, and it's where we live and thrive. There are estate planning lawyers who draft wills and draft trusts, and there are estate administration lawyers who will help an executor or a trustee after someone passes to marshal the assets and inventory them and decide who's supposed to get what and make those distributions. And often, the planners and an administrators are the same people, and then there are some people who do all three things. They do the planning, they do the administration, and they'll do some litigation.
But for us, this area, because it's so specialized and focused, to be good at it, it's something you need to do all day, every day. It's who we are. It's who we are in our souls. But when you combine that with our approach to making sure to do our diligence, understand the cases, be able to advise our clients on what the best course is, continue to understand the facts as they develop, advise on what the strengths and weaknesses are and what a fair result will be, combine that with our bedside manner, what you get is a better mousetrap, because you get a better client experience.

Marty Stevens Heebner:
Scott, in every single episode, I emphasize how important it is to plan for your later years, and, of course, a lot of people still don't do it. So, how specifically can having that plan mitigate a possible probate situation?

Scott Rahn:
We see all kinds of plans and we see all kinds of quality, or lack thereof, in those plans. It's like anything else. If you fail to plan, plan to fail. How much time, energy and effort you put into what you want your legacy to be is going to be meaningful, and is going to be more likely to generate that result. And part of that is being honest with yourself about what you have, who your heirs are, what you want them to have, when you want them to have it, and I think that's a really difficult part of the planning process. I'm not a planner, I'm a recovered planner, because it's just not who I am. I'm a trial lawyer.
When you look at how difficult it is just to deal with your own morality, but then perhaps you have a child who has some substance abuse issues, or perhaps some mental health issues, or you have children who don't get along. Being really honest with yourself about what the specific dynamics are of your situation, and being open and honest and vulnerable with your estate planning attorney about those circumstances so that you can build a structure around it that accounts for those kinds of things is the best approach that you can take. Because if you don't confront those issues with your planner, they're going to come up, more likely than not, certainly based on what I do all day, every day. They're going to come up, and in a way that you certainly wouldn't want.

Marty Stevens Heebner:
For me, planning indicates not only that they took the time, but that they cared enough about their family to give them, in a way, a compass, of how to navigate their lives after this person had passed. I know I was so grateful to my dad because he had every I dotted and every T crossed, and it was still so hard. To me, it's like, cough up the courage and make the investment, because your family will be so grateful to you when you're gone.

Scott Rahn:
And they will besmirch your name when you're gone if you didn't. The number of families who I've heard say, "Gosh, I thought mom or dad had their stuff together. I can't believe they left us in this situation." That's not the way you want to leave your family.

Marty Stevens Heebner:
No, you don't. You don't.

Scott Rahn:
I think if you have the opportunity, take the time, spend the resources, do the planning, make it do what you want it to do. If you go through that experience, I think you're more likely than not to be successful in achieving mortem goals.

Marty Stevens Heebner:
Also, can I just say, remember to sign your documents. I heard years ago of this horrible situation. It was an 80-year-old cardiologist. He was a cardiologist. And when he passed away, I believe from a heart attack, they found his whole plan all neatly set in a drawer unsigned. He had his first family, the wife had passed. She had a great fortune from her family that of course he got a huge chunk of. Then he had a second family, but he hadn't signed any documents. So, you can imagine where that headed to.

Scott Rahn:
We've seen that before. My guess is the sign here flags were probably still on the pages. We've seen all kinds of things, all kinds of different documents. Estate plans written on napkins, on scratch paper. You name it, we've seen it.

Marty Stevens Heebner:
What's your take on doing a will or a trust on one of the online platforms that usually have legal something in their name, and they have templates?

Scott Rahn:
I think those platforms can be good in a pinch if you need something in a hurry, if you're facing some sort of situation where you don't have time or perhaps don't have the resources. But I'll just share this anecdote from a friend of mine who does professional negligence, malpractice law. He always says, "I love those businesses. They create a lot of work for me."

Marty Stevens Heebner:
Meaning you want to go to a real attorney for that sort of thing.

Scott Rahn:
Yeah, you're going to be better served by going to an estate planner who's going to be able to help you actually understand what those provisions mean, because we've seen all kinds of things with those platforms as well, where there are blanks in the documents. There are no beneficiaries' names. So, you've done a trust, and you pass, and you think, "Great, everything's going to go to the people I wanted it to go to," but it's not complete. There are all kinds of problems. I always like to say, "Look, I could wire my own house, but I shouldn't."

Marty Stevens Heebner:
It could burn down, just like in this case, metaphorically speaking.

Scott Rahn:
Exactly. During the time that I was planning, it always amazed me. We were dealing with some very sophisticated, some very wealthy people, who didn't want to invest what I thought was a very small amount of money and certainly a small amount of time to ensure that their affairs were in order. And I think one of the things that I ended up talking to people about was, if you don't do this, you're going to leave a legacy that leads your children, your spouse, to believe that you didn't have your affairs in order, you didn't have your stuff together, and, "Why did they leave us in such a mess?" And I think that resonated with people, because they might be busy, but when they're successful, they don't want to leave their family with a big mess.

Marty Stevens Heebner:
Scott, you launched your own law firm, RMO. Why did you decide to do that?

Scott Rahn:
I spent many years in big law, and I had a great experience, and still have a lot of friends who are at those big law firms. But in this space particularly, the vast majority of clients are individuals, whether it's a family trustee, a family executor, heirs, beneficiaries, et cetera. Most of the big law firms aren't really interested in serving individual clients. They're mostly chasing Fortune 500, Fortune 100 companies that have more consistent work, and they can do the corporate work and the tax work and the employment work and the litigation work, as opposed to just representing families.
And for me, there came a time in my career where I needed to make a decision whether I wanted to continue to work with the families that I worked with or if I wanted to stay in big law. It was a relatively easy decision. I like people, and I like helping families, so while I really appreciated the opportunities that were afforded to me in big law, and making partner, and rising up the partnership ladder and all those things, this is really where I live. This is really a much better fit for me, being able to help people.

Marty Stevens Heebner:
What do you wish people knew about the work that you do that they probably don't know?

Scott Rahn:
In terms of law, I think people look at lawyers as though we're mechanical, that we just go through the Xs and the Os, and this is what the law says, so this is what's got to happen. And that's not really how this works, and certainly not in this space. I'd love for people to understand just how much mental and emotional capital is required to be really good at this specific practice.
Don't get me wrong, the Xs and the Os are important. You need to know the statutes. You need to know the case law. You need to know how the facts as they're developed are going to impact the case. But if you don't take the time, if you don't have the bedside manner to really hear and understand what your client, the family, the dynamics and the full history of what you're looking at, how that all comes together and is intertwined, you're probably going to miss something. All of that takes time, and I wish people appreciated about this, is that probate litigation is a process. If you give that process the time that it needs and the attention that it deserves, the results can be really extraordinary.

Marty Stevens Heebner:
When you're working with older adults and/or their families, you really got to lean in there and listen and imagine who their lives are, step into that. And I imagine, too, that you not only are putting together who your clients are, but also who your opposition is, and try to imagine where they're coming from, because there's a lot of gray in law.

Scott Rahn:
A lot of gray, and a lot of gray in the facts too, right? Because people have their own experience, so you can have two people who sat in the same room, were told the same words, and walked out with two completely different recollections of what transpired. What we always try to compare these cases to is an impressionist painting. An impressionist painting is created through thousands and thousands of teeny, teeny, tiny little brushstrokes to create the picture that you want the viewer to see. And these cases are similar. It's rare that there is one fact in any case that drives the results. It's really a matter of collecting all those teeny, tiny little details, and then putting them together and piecing them together to create that masterpiece that you want the trier of fact, if it's a judge or your own client or their brother, sister, stepparent, to see, so that they understand what the case really looks like.

Marty Stevens Heebner:
That's fascinating that you use that comparison, and it's so important to work with somebody who really understands the details of those brush strokes. I mentioned in the introduction that probate courts are very busy. I think people don't realize what a crisis dealing with older adults and their families and the law is, because those probate courts are jam-packed, and it can take a long time to see the case through.

Scott Rahn:
Correct, and that's to the point that I was making earlier about probate being a process. There is a statistic that I heard from a conference I attended a number of years ago, where they were talking about the number of unrepresented people in court actions, including probate, and the number was quite staggering. It was something like 75% of people involved in a court process, whether it's probate or unlawful detainer, somebody who's staying in their property beyond their lease, don't have a lawyer because they can't afford it. The legal profession isn't going to take their case because it's not big enough. And what we've seen in the probate court is a number of people who don't understand the process. They're doing their best, God bless them, they're just trying to handle their loved one's affairs, but they just don't know what they're doing.
There aren't a ton of resources to be able to help people if they can't get a lawyer, and the court's trying to help them to the extent they can, but that's not why judges are there. Judges are there to process the cases and make sure everything's done right, and they simply don't have the bandwidth to be able to hold everyone's hand to get them across the finish line. Those same people end up coming back again and again, and a case that should take a year, say even 18 months, ends up taking four years, because they're just not doing things the way that they're supposed to be done according to the rules, and that really clogs up the courts. It's certainly something that we deal with in the probate court.

Marty Stevens Heebner:
Can legal aid help people like that?

Scott Rahn:
There are all kinds of resources out there, but it's a matter of finding them. We're unable to take every case, obviously, that comes to us, but we always try to refer people if there's a resource for them. In conservatorship cases, for example, Bet Tzedek is a wonderful organization here in Los Angeles, and they have a conservatorship clinic where they will help people with conservatorships. We often refer people to Bet Tzedek if it's not something we can help with.

Marty Stevens Heebner:
We can list that as a resource.

Scott Rahn:
Yeah.

Marty Stevens Heebner:
This is incredible, Scott. Such important information for people to really think about and be aware of. Thank you so much for being here.

Scott Rahn:
Thank you for having me.

Marty Stevens Heebner:
Scott Rahn, founding partner of RMO LLP. You can find out how to contact Scott on our website, howtomoveyourmom.com.