can the lawyer who prepared a will later represent the personal representative

If the person is the Personal Representative, the lawyer represents the Personal Representative individually, unless the Personal Representative and lawyer agree otherwise. The lawyer must be careful not to, either by affirmative action or omission, give the impression that he also represents the beneficiaries of the estate.

Full Answer

Can a lawyer represent the personal representative of an estate?

If the person is the Personal Representative, the lawyer represents the Personal Representative individually, unless the Personal Representative and lawyer agree otherwise. The lawyer must be careful not to, either by affirmative action or omission, give the impression that he also represents the beneficiaries of the estate.

Can a a lawyer prepare a will for a family member?

A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction.

Does the lawyer have a duty to monitor the personal representative?

First, this opinion does not impose an affirmative duty upon the lawyer to monitor or double-check all of the Personal Representative’s actions in administering the estate or to investigate whether the Personal Representative has wasted or misappropriated estate assets.

What happens if a lawyer refuses to help a personal representative?

If the Personal Representative refuses to do either, then the lawyer should withdraw from the representation and, upon withdrawal, request that the court order an accounting of the estate. By doing so, the lawyer avoids assisting the Personal Representative in any criminal or fraudulent acts.

Does a lawyer represent the PR?

While I think it is always better to keep the lines of communication open, and to cooperate with all of the interested parties, the lawyer technically represents the PR and not the beneficiaries. Of course, the PR is required to act in the best interests of the beneficiaries, so the lawyer has an interest in making sure this happens.

Is probate an open court process?

In addition to the good advice my colleagues have provided, I would add that since probate is an open court process you can go to the court and look at everything that has been filed. Many courts have electronic records, some accessible via the internet. Depending on what information you seek, that may answer your question.

Do you need a probate lawyer?

You need to hire your own probate lawyer to see what is happening with the estate. The attorney for the personal representative only represents the estate and not any of the heirs. If neither the attorney nor the personal representative will return your calls, your best remedy is to have your own representation...

Does a probate attorney talk to other heirs?

The probate attorney only has as a client the personal representative. The probate attorney has certain ethical duties towards the other heirs, but these do not include talking to them or giving them advise. There are at least three good reasons why the lawyer for the personal representative will not talk to other heirs:...

How to get a will drafted in Washington?

Talk to an experienced estate planning lawyer who can help you choose the right personal representative and can ensure that your will is drafted and executed according to the laws of Washington. For more information or to get started drafting or amending your will, please call us, or contact us via this website to schedule a private and confidential meeting.

How long does it take to file a will in the county clerk's office?

This should be done within the first 40 days of your death. Additionally, your personal representative will be expected to:

Why is it important to periodically review your will?

It is important to periodically review your will to make sure that the executor that you have appointed remains legally qualified to act as your personal representative.

Can a personal representative be a resident of a county?

There are no residency restrictions. However, if your personal representative is not a resident of the county where your estate is probated, your personal representative may need to appoint an agent in the county where the estate is being probated and file a bond with the probate court.

Can a minor be a representative of an estate in Washington?

An adult. Minors may not be personal representatives of estates in Washington.

Can you appoint a personal representative in Washington?

You have the right to appoint a personal representative you feel is qualified to handle the affairs of your estate. However, Washington law places some restrictions on who may serve as your personal representative. Specifically, the Revised Code of Washington 11.36.010 says that a personal representative must be:

Do lawyers owe fiduciary duty?

To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.

Does a probate attorney have a fiduciary duty?

Turning back to the question, whether the probate attorney owes a fiduciary duty the heirs of the estate depends on the state in which the estate is being probated. Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Personal Representative . These states believe that since the Personal Representative owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Personal Representative, the duty flows from the Personal Representative to the lawyer.

Does a probate lawyer owe fiduciary duty to the estate?

Most states, (including Maryland and the District of Columbia) however, take the position that the probate lawyer does not owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the Personal Representative to the heirs as unique from the fiduciary duty owed by the lawyer to the Personal Representative. Also, these states want to maintain the Personal Representative’s ability to have protected communication with the attorney.

What is a personal representative?

As personal representative, you may be acting on behalf of the estate of a parent or spouse who chose you to do so, but you are acting only because the probate court has granted you authority. You are subject to the jurisdiction of the probate court, which means the court has power to order you to do something.

Who is entitled to probate if he or she dies without a will?

Anyone who would be entitled to inherit from the deceased if he or she died without a will is entitled to notice of the probate of an estate. Heirs may choose to waive their right to notice, but the personal representative is obligated to go through the process of giving notice or securing a waiver. This is usually routine, but can be touchy, say, if Uncle Joe had a child out of wedlock who was never publicly acknowledged but whom everyone knew about. Don't be tempted to do an end run around the law. Notify everyone who has a legal right to notice.

What is estate administration?

Estate administration is about distributing assets to heirs and beneficiaries , yes. But that's the last step in the process, and must not be carried out until ALL other business is concluded: the period for creditors to make claims, payment of taxes, and payment of fees for services to the estate, and a final accounting to the probate court. If you distribute all of the estate's funds to heirs and beneficiaries, then discover that you are entitled to reimbursement or there is an outstanding unpaid bill for services to the estate, you will find it very difficult to reclaim the money from heirs who have received, and possibly spent, their distribution.

Why do you have to do probate?

Part of the reason for the probate process is to allow the personal representative to notify potential creditors of the deceased and give them time to come forward and make their claims against the estate. If you distribute any assets before the process for receiving creditor claims is completed, you may find that there is not enough money left in the estate to pay all legitimate claims. If that's the case, you may be exposed to personal liability for distributing the assets prematurely.

What to do if Uncle Joe has a child out of wedlock?

This is usually routine, but can be touchy, say, if Uncle Joe had a child out of wedlock who was never publicly acknowledged but whom everyone knew about. Don't be tempted to do an end run around the law. Notify everyone who has a legal right to notice.

What happens if you distribute assets before the process for receiving creditor claims is completed?

If you distribute any assets before the process for receiving creditor claims is completed, you may find that there is not enough money left in the estate to pay all legitimate claims. If that's the case, you may be exposed to personal liability for distributing the assets prematurely.

Can you dispute an estate claim in Ohio?

Just because a claim is submitted against the estate does not mean that it's legitimate. But just because a claim is not legitimate doesn't mean that you can simply blow it off and fail to respond to it. There is a process for dealing with disputed claims against an estate in Ohio, and a time frame for doing so. Even if a claim appears ridiculous, don't be tempted to ignore it. If the claim is truly not legitimate, following the proper procedures will ensure it is put to rest. If you ignore a claim and don't go through the procedure to dispute it, you may later be forced to settle it, even if it might have been disallowed if you had followed the rules.

Who is the personal representative of an estate?

After considering the above-discussed cases, state bar opinions, and other state cases, it is the opinion of the Disciplinary Commission that ordinarily, when a lawyer is hired by a Personal Representative to assist in the administration of an estate, the lawyer ’s sole client is the Personal Representative of the estate. As a result, the lawyer would owe the Personal Representative a duty of loyalty and confidentiality just as he would any other client pursuant to Rule 1.6, Ala. R. Prof. C. The fact that the Personal Representative has obligations to the beneficiaries of the estate does not in itself either expand or limit the lawyer’ s obligations to the Personal Representative under the Rules, nor would it impose on the lawyer obligations toward the beneficiaries that the lawyer would not have toward other third parties.

What does an estate lawyer represent?

The American Bar Association in Formal Opinion 94-380 recognized that the majority view is that the lawyer represents only the Personal Representative or fiduciary of the estate and not the beneficiaries of the estate, either jointly or individually. In reaching a similar conclusion, a number of other state bar associations have relied, in part, on state law that indicated that an estate is not a separate legal entity. In Ethics Opinion No. 91-2, the Alaska State Bar noted that an estate is “for probate purposes a collection of assets rather than an organization, and is not an entity involved in the probate proceedings.” In Formal Opinion 1989-4, the Delaware State Bar also concluded that under state law, the term “estate” only referred to the actual property of the decedent and did not have an independent legal existence. As such, the Delaware State Bar concluded that the estate could not be a “client” under their rules of professional conduct.

What is the ethical dilemma of representing an estate?

The Office of General Counsel frequently receives telephone calls from lawyers requesting ethics opinions concerning the representation of an estate. In explaining the ethical dilemma the lawyer is facing, the lawyer often refers to himself as “representing the estate”. The lawyer then goes on to describe a situation in which the interests of the estate or the fiduciary for the estate or a beneficiary may be in conflict. Oftentimes, whether a conflict of interest exists is entirely dependent on who the lawyer actually represents in regard to the estate. Additionally, the Bar sometimes receives complaints filed against the lawyer by the beneficiaries of the estate or the fiduciary of the estate. In those cases, identifying the true client will often determine whether the lawyer has breached any ethical duties. As a result, defining the lawyer’s actual client in an estate or probate matter is critical in determining whether a conflict of interest may exist and what duties a lawyer owes to the fiduciary and beneficiaries of the estate.

When dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not?

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

What is the meaning of the term "estate" in Delaware?

In Formal Opinion 1989-4, the Delaware State Bar also concluded that under state law, the term “estate” only referred to the actual property of the decedent and did not have an independent legal existence.

Is a lawyer's only client a fiduciary?

217 Cal. App. P.3d 1258, 1268 (1990). Likewise, other state courts have also determined that a lawyer’s only client is the fiduciary of the estate. See, Huie v. DeShazo, 922 S.W. 2d 920 (Tex. 1996); The Estate of Fogelman v. Fegen, 3 P.3d 1172 (Ariz. 2000); In re Estate of Wagner, 386 N.W.2d 448, 450 (Neb. 1986).

Can an executrix be disclosed to the beneficiaries?

Therefore, the lawyer could not disclose the executrix’s apparent fraud to the beneficiaries or the court. While not directly addressing the issue of client identity, it is clear that the Disciplinary Commission considered the executrix to be the lawyer’s sole client.

Who is the attorney in probate?

An attorney in a probate is hired by a particular person, usually the personal representative. Ethically the attorney may not give advice to other people, including heirs who are to inherit under the will, and may not disclose confidential matters.

What is an example of a lawyer getting into trouble talking to a non-client?

Here is an example of a lawyer getting into trouble talking to a non-client: Husband and Wife are not divorced but the marriage has fallen apart. Wife unexpectedly dies of natural causes. There is no will and it looks like the wife's estate is worth $110,000. There are no children.

Can you talk to a non-client in probate?

Likewise, when you hire us for a probate, if an estate creditor calls us we simply end the conversation with the statement that we do not talk to non-clients. (An exception would be if you authorize us to talk to or negotiate with a specific creditor.)

Ruth Elaine McMahon

I agree with my collegue. The answer turns on what kind of papers were filed on behalf of some heirs. The attorney for the estate represents the executor or personal repersentative and not individual heirs, but there can be some instances where filing a document on behalf of an heir does not impact the other heirs adversly.

Judith Anne Schening

The attorney has a duty to represent the estate in a manner consistent with the best interests of the estate beneficiaries. If filing a paper on behalf of one of the heirs helps that heir but does not hurt any of the other heirs, then the attorney has not breached any duty.

What is an interested party in a will?

An interested party is someone who has some financial interest in the settlement of the decedent’s estate. Beneficiaries named in the will, heirs who would inherit under Texas intestate succession laws, and creditors are among those considered interested parties.

Who does not represent the beneficiaries of an estate?

In other words the attorney who represents the executor does not also represent the interests of the beneficiaries of the estate. Once a probate proceeding is opened, any “interested” party may file a probate action with the court to contest certain aspects of the proceedings.

When does probate occur?

When Does a Probate Proceeding Occur? If the decedent left a will and named someone as executor, that person typically retains an attorney to initiate a probate proceeding on his or her behalf. In such a case, the executor is the attorney’s client.

What is probate after death?

Probate is the legal procedure by which a deceased individual’s property passes to others after his or her death. Probate is usually necessary whether the person died with a will or without a will (which is known as “intestate”). Upon death, the decedent’s interests are no longer those of a living person.

What happens to an estate when a person dies?

Upon death, the decedent’s interests are no longer those of a living person. In a probate proceeding, assets, liabilities, and any other financial matters become the interest of the “estate” of the deceased. The estate, however, must be represented by a living entity.

How to contact the Houston law office?

Call us at 281 242-0995 or contact our Houston law offices.