Key Takeaways
- Probate attorneys must be vigilant against conflicts of interest, privacy violations, and unethical practices during estate management.
- The team of firms they choose to work with must also operate ethically to avoid exploitation of potential heirs and privacy violations.
- Ensure transparency, respect, fairness, and legal adherence in selecting an ethical heir search firm to prevent potential setbacks.
Maintaining the highest standards of ethical conduct is a consequent obligation for probate attorneys. Your estate management, heir search, and cooperation with other legal professionals should be clear of conflict of interest, privacy violation, non-compliance, and other unethical practices.
The same should apply for every other professional you choose to work with. As the probate attorney, you remain accountable for other parties you choose to work with. So, the buck will stop with you if at all your chosen heir hunter is, for example, found to have a financial stake in the case outcome or used manipulation or coercion.
But you need the help of a professional probate genealogist if at all you want to prove the crucial due diligence. That does not mean falling for every firm that claims to be offering the services. You want a firm with proven track records and that understands the nooks and crannies of due diligence, reportage, and estate management.
Common Ethical Challenges Probate Attorneys Should Look Out For
The four common challenges probate attorneys face during the probate process are conflict of interest, non-compliance with legal standards, unethical practices, and privacy violations.
Unethical Practices in Heir Search
Heir Hunting has a fair share of its blame when it comes to unethical practices. One route you want to avoid is the illegal practice of luring potential heirs into signing contingency-based contracts secretively.
Bar Opinions like Florida’s 97-3 designates the “attorney’s agent as subject to the same ethical restrictions on solicitation as the attorney.” Moreover, the Bar’s Rules of Professional Conduct, specifically Rule 4-7.4(a), prohibit lawyers from soliciting professional employment from a prospective client in person or otherwise.
Proceeding to hire a percentage-based heir hunter who veers from these guidelines and exploits the potential heir’s naivety could be interpreted as ignoring local laws and complicit in exploiting vulnerable heirs.
Conflict of Interest
Percentage-based heir hunters have been accused of conspiring with other professionals to defraud unsuspecting estate beneficiaries a portion of their estate. They posed as representatives of the newly discovered heir, but already have a stake in the outcome of the case.
The American Bar Association requires attorneys to “refrain from accepting referrals from an heir-hunting service nor represent both the service and the heir jointly prior to the heirs being contacted by the personal representative.” Otherwise, you risk prioritizing the service over heirs’ interests, potentially breaching ethical standards and leading to litigations.
For a case that only requires a few hours of research and reporting, a one-time payment of about $1,000 could be better than shelving a percentage of their estate. That’s why hourly-based heir search firms are favored in probate research over the dreaded percentage-based heir hunters.
Privacy Violations
Having to deal with names, genealogical data, and civil records and using them to complete an accurate family tree exposes you to one of the most significant ethical concerns in heir searches. That Social Security number, birth certificate, financial information, etc., is normally shared with fellow professionals to expedite the search but also rests as a legal landmine for the probate attorney.
Regulations such as the California Consumer Privacy Act (CCPA) set significant fines, with penalties ranging from $2,500 per violation to $7,500 per intentional violation for a data breach that exposes the heirs to risks such as fraud, identity theft, and emotional distress.
Besides the state-specific laws, other confidentiality and data protection regulations that you need to adhere to include the Gramm-Leach-Bliley Act (GLBA) and the Health Insurance Portability and Accountability Act (HIPAA).
Some of the best practices to seamlessly navigate these pitfalls include obtaining heirs’ written consent before accessing or sharing their information. Also, only collect the necessary data in the probate process and limit access to only authorized personnel.
Non-Compliance with Legal Standards
Searching for potential heirs to an estate must be done in accordance with the relevant state and federal regulations. State probate codes such as New York’s Surrogate’s Court Procedure Act (SCPA) and the California Probate Code establish clear rules for proving heirship and the procedure to administer the estate.
Other laws you must comply with include the Federal Trade Commission Act (FTC Act), the Uniform Probate Code (UPC), and the Private Security Act that every probate genealogist must possess to operate legally.
Failure to comply with relevant legal standards can result in delay, reputational damage, and financial penalties. For example, violating the FTC Act can result in fines of over $50,000 per violation.
How to Choose an Ethical Heir Search Firm
Understanding the potential challenges that could jeopardize your practice is a major stride to ensuring you’re always on the right. But what do you look for in an heir search firm to confirm that it upholds ethical and professional standards?
- Transparency and Accountability
Your chosen firm should at least provide clear documentation and communication of their service, terms and conditions, and ensure clients understand the implications of their decisions. There shouldn’t be any hidden costs, and you should have a transparent medium to determine the fees and possible pricing structure.
- Respect and Confidentiality
With the sensitivity of the information unearthed during the search for missing heirs, safeguarding personal data should be non-negotiable. Your heir search firm of choice should have robust data security measures to responsibly handle the personal and genealogical information.
- Fairness and Integrity
Avoid a firm with signs of manipulation, favoritism, and unfair compensation practices to save yourself and your career from bad reputation, fines, and failures. This should clearly be reflected in the firm’s experience in the field as well as clients’ testimonials. Most importantly, ensure your chosen firm is affiliated with recognized organizations like Association of Professional Genealogists (APG).
- Adherence to the Law
Only partner with a firm that understands probate laws and legal regulations in your jurisdiction(s) of focus. They should be in the loop with data protection regulations like the General Data Protection Regulation (GDPR), estate distribution models across states, anti-fraud policies, and more.
The heir search firm evaluation process should not be final. Probate attorneys must request crucial documentation like service agreements, contracts, proofs of due diligence, etc. Once you strike a deal with your chosen firm, keep monitoring the process to ensure they maintain ethical practices.
Successful Heir Search Must Be Professional and Compliant
Heir search firms are undoubtedly an invaluable resource when dealing with unclaimed assets, missing heirs, and unverified family trees in the probate process. However, ethical practice is crucial in their duties to maintain trust and ensure legal compliance.
By adhering to the principles of professional integrity, fair compensation, confidentiality, and transparency, heir search firms can help probate attorneys navigate the complexities in the process responsibly. In doing so, they honor the estate and uphold ethical standards that define the profession.