family member who is a lawyer and personal representative represent the estate

In practice, this means that the personal representative or executor is generally the primary point of contact between the family and the lawyer. While other beneficiaries or family members may participate in the case and meet with the lawyers, when conflicts arise, it is the estate that has the attorney’s primary loyalty.

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 lawyer represent a family member?

Lawyers can represent their family members, as offering dispassionate counsel is not essential when lawyers are emotionally involved in a specific case. This is why the lawyer should think for a longer time and attentively before accepting the family member’s case. Can a lawyer defend his family?

What is the role of a personal representative in estate planning?

You'll be asked to name a number of fiduciaries when you set up your estate plan—people who will be given legal responsibility to act in your estate's best interests. One of these is your personal representative, the individual who will be responsible for settling your estate and guiding it through probate.

Who is the client when a lawyer handles an estate?

There are three theories regarding the identity of the client when a lawyer handles an estate. 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.

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.

Does the wife have children?

There are no children. Wife's intestate heirs are her husband (50%) and her parents (25% each). Attorney is hired by husband. Attorney stupidly takes phone call from the dead wife's father and advises of above distribution. Parents think they are in for 50%.

Who represents the fiduciary in a probate?

The plain language of this court rule is clear that an attorney appearing in the probate court on behalf a fiduciary represents the fiduciary, rather than the estate.

Does a fiduciary represent the entire estate?

On January 19, 2017, the Court of Appeals held in the case titled Estate of Tyler Jacob Maki that the attorney hired by a fiduciary represents only the fiduciary and not the entire estate. Specifically, the Court held that when an attorney enters into an attorney-client relationship with a fiduciary, it does not have an attorney-client relationship ...

So, who does the Probate Attorney really represent?

The answer to that question depends on the state in which the estate is being probated.

McDonald Law Firm is here to help

Everyone’s goal should be for the settling of the probate estate to go smoothly. Understanding the lawyer’s role will go a long way towards achieving that goal. If you have questions or would like to discuss your personal situation, we are available to have a consultation with you via telephone or via video conferencing if you prefer.

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.

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 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.

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.

Can you reclaim an estate if you distribute it to heirs?

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.

Can you use estate funds as a piggy bank?

DON'T Use Estate Funds as Your Personal Piggy Bank. This should be obvious, but you would be surprised how many people "borrow" from estate funds when they run short in their own accounts, with the full intention of paying the money back. Sometimes they do, often they don't, but it's always a bad idea. As personal representative, you are legally ...

Can a Lawyer Represent a Family Member in Court?

In general, family litigants are free to choose the lawyer they want. They only get blocked if there is an obvious conflict of interest or extraordinary circumstances like fraud involved in making this decision.

Should a lawyer represent his family members?

The family members and the relatives are the topmost and important people for which a lawyer can represent himself in the court.

Ethical Issues to Represent your Loved Ones

There is nothing unethical to represent the family member in court for a lawyer. You can do your best for your relatives by limiting yourself by being in the ethical zones; for instance, giving legal advice to your relative on dinner or lunch can result in an unintentional client-attorney relationship.

Frequently Asked Questions

Lawyers can represent their family members, as offering dispassionate counsel is not essential when lawyers’ emotionally involved in a specific case. This is why the lawyer should think for a longer time and attentively before accepting the family member’s case.

Conclusion

To wrap up, it is hard and difficult to say no to a family member. It is out of your practice area, or if you honestly don’t have to deal with the case, don’t be scared to say just no. lawyers should not indulge or involve themselves where there is much involvement of emotions.

Who does a lawyer represent?

Generally, the lawyer represents the individual that hired him to assist in the administration or probate of the estate. If that person has only one role and is not a fiduciary, the lawyer represents only that person, unless the client and lawyer agree otherwise. If the person is the Personal Representative, the lawyer represents ...

Why is a lawyer retained by a personal representative?

Because the lawyer is retained by the Personal Representative to represent the estate and because the Personal Representative is legally required to serve the beneficiaries , the lawyer also has an obligation to the beneficiaries.

What are the consequences of adopting the derivative client approach to representation of a fiduciary?

First, the lawyer’s obligation to avoid participating in a client’s fraud . . . is engaged by a more sensitive trigger.

What happens if a personal representative refuses to do either?

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.

What is candor towards the tribunal?

Candor Toward The Tribunal. (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or.

What does the Office of General Counsel do?

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”.

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.

What is a lawyer deemed to be?

Lawyers are deemed to be professionals who should present an objective and unbiased opinion on the case in question; with the involvement of a family member in the case, it will just rob of the lawyer the quality to act as how he/she is expected to.

What are the preconditions for representing a family?

First, there can be no active conflicts between the family members. For example, the family can’t be fighting over who gets what from deceased relative’s estate or how to divvy up the lottery winnings.

What to consider when a lawyer doesn't have a conflict?

Another consideration, even if the lawyer doesn’t have a conflict and is able to maintain the appropriate emotional distance, is that the lawyer has to have the appropriate subject-matter expertise. Most of us are specialists.

Why is family law so difficult?

Not because the law itself is hard, for the most part, it isn’t; but because the people are often in crisis and they bring that energy into your world. Many, many lawyers find it extremely difficult to practice in this area. They become burned out and dejected.

Can a lawyer promise to hold a family member's information confidential?

And, because their is no confidentiality between multiple clients in a joint representation, the lawyer can’t promise to hold anything any one family members tells him/her confidential if it’s related to the representation. So, it can be done, but the lawyer has to be very careful. Sponsored by Gundry MD.

Can a family member be represented by the same lawyer?

Of course, if one of the family members caused the death of the decedent then that person could not be represented by the same lawyer as the rest of th. Continue Reading. Yes, if the family has no conflict of interest against each other . In the alternative the conflict, if it is a waivable one, can be waived.

Do you have to apply the same ethical/conflicts rules to guard against self-dealing or misuse of

You have to apply the same ethical/conflicts rules to guard against self-dealing or misuse of confidential information that you would with an unrelated client, but generally speaking, provided there is no conflict, there's nothing stopping a lawyer from representing a family member.