Sometimes a probate heir can be represented on a contingency fee basis. For example, suppose this set of facts. A man father’s a child out of wedlock (biological father). The biological mother marries another man. The child is raised by the non-biological father as a child of the marriage bearing the same surname. The non-biological father was never told that the child was not his biological child. The non-biological father and biological mother both die. The child inherits their estate. Later, the child gets a DNA test. This is very popular now. The test reveals that he is the biological child of another man, and has biological siblings. He contacts the siblings and learns that their parents are deceased and they are in the process of probating their father’s estate. He comes in to see the probate attorney. He wants to claim a child’s share of his biological father’s estate. He has no money to pay the probate attorney. You may have reservations about whether or not the child should seek to profit in this situation. Here is what I have learned. In inheritance situations, heirs usually lose any common sense they possessed. There is something about claiming your share that gets the pot stirring. Let’s say the child has a good story to tell and convinces the probate attorney to represent him. The probate attorney can agreed to represent the client on a contingency fee basis. That means that if anything is recovered, then the attorney and the client share the recovery. Usually the contingency is from 1/3 to ½ of the recovery.
In case you are wondering how this child might recover from his biological father’s estate, here is how. Did the biological father name all of his biological children in his will? Usually men who do not marry the mother, and the mother remarries another man, leave it alone. They usually do not mention that they fathered a child out of wedlock. Short of naming the child did he somehow indicate that he knew of this child, or knew that he might be his child, and was intentionally omitting any provision for him in his will? For example, servicemen will sometimes state in their will that they may have fathered a child overseas and are intentionally omitting any provision for any such child in their will. If the testator (biological father) named the child or otherwise indicated such a child might exist, then nothing usually can be recovered from the biological father’s estate. If the testator did not, then it is possible to claim an omitted child’s share. The Oklahoma statutes provide for an equal share for each child who is omitted. An experienced probate, will and trust attorney can usually draft the will and trust so that a successful probate, will or trust contest is avoided. Even if the testator assets that there could not be an omitted child, it is best to still include some language that would serve to discourage an omitted child contest.
When an attorney represents a client on a contingent fee basis, which means the attorney receives a percentage of any money recovered on the client’s behalf, the attorney wins if the client wins. Thus, attorneys have every incentive to win their client’s cases. If no money is recovered, the client is not responsible for any attorney fees. In some cases it is the only way a client can have his or her case litigated. We are nation that follows the law and everyone deserves to be represented, win or lose.
As beneficial as contingency fee cases can be to a claimant, attorneys are not allowed to represent the personal representative of the probate (the administration of the estate) on a contingency fee basis for the probate itself. The attorney is required to charge an hourly fee. The judge must approve the fee before the conclusion of the probate if the fee is to be paid out of probate funds.
If you need a probate, will and trust attorney, contact Brent D. Coldiron, attorney at law, 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 43 years experience handling a variety of legal matters, including probates, wills, trusts, business formation, elder law, medicaid qualification for nursing home care, corporations and guardianships. Give Brent a call, he knows what to do!