what does an attorney dwho represents an estate do

by Prof. Rocio Medhurst Published 3 years ago Updated 3 years ago 9 min read

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.

In a probate matter, the estate's attorney generally represents the Personal Representative, in his or her fiduciary capacity. What does that really mean? That means that the lawyer works with the Personal Representative so long as that person is acting in the estate's best interest.Mar 17, 2020

Full Answer

Who does the lawyer represent in an estate case?

Jan 26, 2017 · 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. The Court went on to rule, “Therefore, we conclude that the plain language of the statute establishes that an attorney hired by a conservator represents the conservator, and the attorney does not have an …

What happens if a lawyer refuses to represent an estate?

The lawyer represents the estate by acting for and through the fiduciary of the estate for the ultimate benefit of the beneficiaries of the estate. 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.

Is the personal representative the client of the estate?

Jul 15, 2020 · One of the biggest sources of conflict in probating the estate is understanding who the probate attorney hired by the Personal Representative of a probate estate represents. Many Personal Representatives do not understand the probate process and leave the tasks up to the lawyer. The heirs of the estate may hear only from the probate attorney, or may hear the …

Why do I need a personal representative and a lawyer?

Jul 28, 2020 · Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Executor. These states believe that since the Executor owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Executor, the …

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”.

Where did the executrix move to?

After the lawyer assisted the executrix in collecting the assets of the estate, including cash, the executrix moved to Tennessee, taking with her the cash assets of the estate. Thereafter, the executrix refused to communicate any further with the lawyer.

Who does a lawyer represent?

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 are fiduciary duties?

Also, before answering the question, it is helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate: 1 Duty to communicate: a duty to notify the beneficiaries the estate exists, identify the Executor, provide a copy of the inventory, provide copies of court filings, generally explain documents that require a beneficiary’s signature, etc. This duty to communicate is not the same thing as an attorney-client relationship, which means there is no attorney-client privilege and the attorney cannot give legal advice. 2 Duty to account: provide regular estate accountings, which includes explaining funds paid out of estate accounts for expenses. 3 Duty to treat all beneficiaries equal: distribute estate funds at the same time, if a question arises as to how something in the Will is to be interpreted the attorney cannot interpret it, the court must interpret it.

What is the first step in probate?

Whether you are the Executor or an heir of the probate estate, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Executor of a probate estate.

Do lawyers have fiduciary duties?

Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Executor. These states believe that since the Executor owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Executor, the duty flows from the Executor to the lawyer. Most states, however, take the position ...

What is the duty to communicate?

Duty to communicate: a duty to notify the beneficiaries the estate exists, identify the Executor, provide a copy of the inventory, provide copies of court filings, generally explain documents that require a beneficiary’s signature, etc. This duty to communicate is not the same thing as an attorney-client relationship, ...