Tuesday, August 7, 2012

Feldkamp executor changed - again

"In the beginning there is price; in the end there is cost"

I first heard that sometime in the late 1970s, and I have never forgotten it. It's true, whether you are buying life insurance, cars, houses, clothing, healthcare insurance - you name it.

And it can be just as true when you need legal advice.

You can go with a cheap (low-priced) lawyer, who may take twice (or more) and who might not even get it right with all the extra time. Or you can go with a lawyer with high expertise, who will charge a higher hourly rate. It will take him less time, and the job will probably get done right the first time.

And then there is the issue of not being able to afford a lawyer in the first place, which is a serious problem for many people. And so you do your best to struggle in a system that requires legal knowledge that you just don't have. You can perhaps do a great job with documents and be right on target with them but, if you don't know how to slug it out in front of the judge, then you may lose out.

That's what happened in Judge Chmiel's courtroom this morning.

It should have been a no-brainer to get a Motion to Vacate a recent court order dismissed. A lawyer representing Jackie Feldkamp would probably have been done in five minutes. Jackie and her husband did a great job with the documents that they prepared to get her appointed as executor of the estates of her late father and mother, and they did an excellent job preparing their own Response to the Motion to Vacate that was filed by an attorney for her brother, Scott Feldkamp.

Last Friday Judge Chmiel could have ended the Motion to Vacate, when Attorney Duane Slayton, of Hampshire, filed his Appearance. Even at that hearing Judge Chmiel told Slayton that he was very concerned about Slayton's not filing the Appearance until August 3. Judge Chmiel said several times that he was concerned.

Unfortunately, Jackie was late to court and missed the first ten minutes, when Judge Chmiel was reading the Riot Act to Slayton. If she had had an attorney there that morning, her attorney would have instantly asked Judge Chmiel to dismiss the Motion to Vacate, and Judge Chmiel probably would have had no choice but to do so.


Attorney Slayton has apparently worked on estate matters for Scott Feldkamp for more than two months, yet he never filed his Appearance. That bothered Judge Chmiel.

On July 20 Judge Chmiel terminated Scott Feldkamp's authority as executor in the two estates and appointed Jackie as the executor. So Slayton couldn't represent Scott Feldkamp as executor after July 20, because Scott Feldkamp was no longer the executor. Slayton was informed by Jackie that his services were no longer needed. He was done. Fini. Finished.

But then Slayton filed a Motion to Vacate Jackie's July 20th appointment as executor, and he filed it as attorney for Scott Feldkamp, executor. You can see the problem; right? After July 20th Scott was no longer the executor, so how could Attorney Slayton file the Motion for him. Plus Slayton himself had never filed an Appearance.

It was not until the date set for the hearing August 3, on the Motion to Vacate that Attorney Slayton filed his Appearance. And this bothered Judge Chmiel.

However, in the absence of an objection from Jackie, Judge Chmiel let it slide and, after further discussion during the hearing, he continued the August 3 hearing to today.

I think Jackie intended to continue her efforts to have the Motion to Vacate dismissed today but again, without an attorney, I think she wasn't confident of the protocol. Judge Chmiel said that "his plan" was to appoint an executor today, and Jackie didn't know how to object. Judge Chmiel hadn't yet granted the Motion to Vacate; he hadn't terminated Jackie as executor. So it was premature to consider appointing Howard Rigsby as executor. Jackie was still the executor.

That might have been Judge Chmiel's plan, but it could have been overcome. The first step would have been to get Attorney Slayton removed from the case, because his Appearance had not been timely filed. The judge could have so declared and then told him to have a seat in the peanut gallery, along with the rest of the audience. Not at the Attorney table, because he would have no longer been an attorney on the case.

Then Jackie could have argued, successfully I believe, that she was competent, capable and available to serve as executor. She had already done commendable work to identify the assets of the estates and was determining what was unaccounted for.

But Judge Chmiel appointed Howard Rigsby, an attorney in Woodstock, to take over as executor. How easy it is for a judge to say that. And it will be horrendously expensive for the estates. Rigsby will, no doubt, do a terrific and honest job as executor. And he'll charge for it. How much? I don't know his going rate, but I'll bet it's in the neighborhood of $300/hour.

With the problems in these estates, he'll earn every penny of it. He will have to sort out the legal custody of the family home in Marengo, the business on U.S. 20 at Harmony Road, other investments, the location and remaining value of estate liquid assets (and I don't mean the contents of any liquor cabinet), what happened to household furnishings and the value represented by them, and trace the flow of assets through accounts that may have been titled in other than the estate name and which have access authorized by other than the initial executor, Scott Feldkamp..

Will Attorney Rigsby be able to find out why Schmitt & Filler withdrew on August 30, 2011, after they cited lack of communication and cooperation from the initial executor? Since Scmitt & Filler represented the executor and Rigsby is now the executor, it seems to me that he might be able to learn the reason, and that might be of great help to him in his supervised administration of the two estates.

I estimate that Attorney Rigsby's fees will exceed $50,000 for administering the two estates. That's $25,000 out of each estate. Hmmm, already that sounds low. When the estates are closed, the accounting will be public.

My guess is that Jack and Audrey Feldkamp may have been fairly private people who would have preferred that the estate settlement was handled out of the public view. In that case, they should have consulted a knowledgeable attorney and put everything into one or more trusts.

In the beginning there is price; in the end there is cost.

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