MCLE SELF-STUDY ARTICLE TIPS OF THE TRADE: WHY OVER-NOTICE? BECAUSE DUE PROCESS MIGHT DEMAND IT.

Written by David Y. Parnall, Esq.^*

I. INTRODUCTION

As children, many of us naively believed that certainty and consistency exist in life. Gold is at Fort Knox; all police officers are good; the transition of presidential power is unassailable; and the Constitution contains algebraic formulas that can calculate a precise result. But then we grew up. Turns out the gold is not actually at Fort Knox.¹ Police are humans. Election falsehoods can be peddled wholesale. And the concepts embodied by the Constitution, instead of being like math equations, are decidedly mutable, flexible, and uncertain.

For a subset of us, though, the Constitution does provide a glimpse of certainty into something way more exciting than gold heists or SWAT teams: calculating notice. Or as some might say, over-notice. More cautious trusts and estates practitioners use this calibration when faced with the problem of "how many people should be told about what our clients are doing?" Should the step-grandchild of the decedent be on the service list? Should I send the non-beneficiary nephew the trustee’s letter outlining the sale of the aunt’s home? What about letting the great-uncle’s, son’s mechanic know about the trust petition just filed? What pushes us to invite potential trouble by saying "yes," if the answer might well be "no?"