When there is a lawyer acting on an estate, he or she has usually been hired by the executor to handle the probate of the Will and sometimes the administration of the estate as well. In a case like this, the lawyer is acting for the executor. The lawyer's loyalty is to the executor, who in turn represents the estate.
A lawyer can act for the executor and the beneficiaries at the same time, but has to be careful about conflicts of interest. For example, a very common situation is one in which a man dies, leaving his wife as the executor of his estate, but he doesn't leave her the entire estate. The wife hires a lawyer to probate the Will. The lawyer knows that the wife can apply to the court to get more of the estate. The lawyer could not act for the wife with respect to the application for more of the estate, but he or she could act for the wife on the probate. Any executor who is making a personal claim against an estate like this is wearing two hats - one executor hat and one personal (beneficiary) hat - and will likely have two lawyers.
The estate lawyer cannot represent anyone whose interest is, or could be, adverse to the well-being of the estate (for those of you who are into research, this is set out in the Alberta Lawyer's Code of Professional Conduct, Chapter 6, Rule 2, Commentary 2.4).
Most of the time, the beneficiaries don't want or need their own lawyers because things go along smoothly. They would probably hire a lawyer if they wanted to dispute what they were getting under the Will, if they needed an answer to a legal question (such as, was the joint property really joint property), or if they need to do something about an executor who is fraudulent, negligent or otherwise acting suspiciously. Other than that, beneficiaries usually have no need for their own legal representation.
But beneficiaries need to realize that the estate lawyer will do, on the instruction of the executor, what he or she thinks is best for the estate, even if that is not necessarily what any individual beneficiary wants. An individual beneficiary cannot instruct the estate lawyer to do what that one beneficiary wants. That would be chaos.
In most estates, there is a lawyer who represents the estate and is frequently the only lawyer involved in it. When beneficiaries receive the final accounting at the end of the estate and are being asked to sign off on it, they sometimes consult an estate lawyer for a couple of hours just to review/interpret the accounting and to ensure that all is in order.
A lawyer can act for the executor and the beneficiaries at the same time, but has to be careful about conflicts of interest. For example, a very common situation is one in which a man dies, leaving his wife as the executor of his estate, but he doesn't leave her the entire estate. The wife hires a lawyer to probate the Will. The lawyer knows that the wife can apply to the court to get more of the estate. The lawyer could not act for the wife with respect to the application for more of the estate, but he or she could act for the wife on the probate. Any executor who is making a personal claim against an estate like this is wearing two hats - one executor hat and one personal (beneficiary) hat - and will likely have two lawyers.
The estate lawyer cannot represent anyone whose interest is, or could be, adverse to the well-being of the estate (for those of you who are into research, this is set out in the Alberta Lawyer's Code of Professional Conduct, Chapter 6, Rule 2, Commentary 2.4).
Most of the time, the beneficiaries don't want or need their own lawyers because things go along smoothly. They would probably hire a lawyer if they wanted to dispute what they were getting under the Will, if they needed an answer to a legal question (such as, was the joint property really joint property), or if they need to do something about an executor who is fraudulent, negligent or otherwise acting suspiciously. Other than that, beneficiaries usually have no need for their own legal representation.
But beneficiaries need to realize that the estate lawyer will do, on the instruction of the executor, what he or she thinks is best for the estate, even if that is not necessarily what any individual beneficiary wants. An individual beneficiary cannot instruct the estate lawyer to do what that one beneficiary wants. That would be chaos.
In most estates, there is a lawyer who represents the estate and is frequently the only lawyer involved in it. When beneficiaries receive the final accounting at the end of the estate and are being asked to sign off on it, they sometimes consult an estate lawyer for a couple of hours just to review/interpret the accounting and to ensure that all is in order.
Question ???
ReplyDeleteIf a Lawyer was the personal Lawyer of a person before he passes away and then becomes the lawyer in charge of the Estate and the Estate is still not dault with, in over 3 years. If I think there is some wrongdoing by the this Lawyer in his inaction in getting the Estate probated. What can I do as a outside family member???
pjewers@yahoo.com
Keep in mind that a lawyer can only act if there is a client. You've said that this lawyer is in charge of the estate, but in fact the executor is in charge of the estate and the lawyer carries out the instructions of the executor, along with advising of legal options. For example, the lawyer could have an Application for Probate ready to go but the executor is delaying signing it. Or perhaps the executor is refusing to come up with property values or bank statements. So the delay here could be the lawyer, or it could be the executor. At the end of the day, the responsibility lies with the executor, because if he isn't getting good service from his/her lawyer he should pick up his materials and go elsewhere.
ReplyDeleteThe executor does NOT have to use this particular lawyer just because he or she was the lawyer who worked for the deceased when the deceased was alive.
As for getting information, you've identified yourself as an "outside family member". I assume that means that you are not a beneficiary of the estate. That being the case, the executor is probably not going to tell you anything, and is within his/her rights not to. On the other hand, a beneficiary who is entitled to receive a portion of the residue of the estate has every right to know what is going on and to expect the estate to be wound up in a reasonable time.
A beneficiary should demand in writing from the executor to know what is going on in the estate and why things are taking three years or more to conclude, including a full accounting of estate assets. He or she should also demand that the executor get moving on the estate. If this does not produce a reply or some kind of action, the beneficiary may have to hire a lawyer to force the issue. You need to start with information though. Is the problem the executor or the lawyer?
Can a lawyer who writes up a will also be an executor of that will? Also, can he claim fees as both a lawyer and as the executor? And who decides how much the executor receives? If there are two executors, do they both get the same amount? Are there any limits to executor fees? Thanks.
ReplyDeleteThere are really several related questions here, all of them of interest to the people who read this blog. I'm going to answer this question as a new blog post (Feb 9/12).
DeleteLynne
Superb post. So informative and rational.
ReplyDeleteWell thanks, Wheaton Probate people! It sure is nice to get a thumbs-up from someone who knows wills and estates law.
ReplyDeleteLynne
Question....
ReplyDeleteMy father is the Executor of Estate on my grandfathers will. The Executor of Estate (My father) is my grandfathers ex son in law. He did not leave the title of Executor of Estate to any one of his three (3) children as he does not trust them to do what is right. He did make one of his daughters the POA and because my grandfather is in a home due to severe alzheimers, the POA has cleaned out and sold his house already and kept the Executor of Estate in the dark about everything. The POA is also now trying to get the Executor of Estate to sign his title over to her and one other sibling. Is there some wrong doing here that the POA has done? does my father who is the Executor of Estate have any power to do or request info yet even though my grandfather is still alive?
A person acting as attorney under a POA is supposed to be acting in the best interest of the person they are looking after. This means that they DO have the power to sell property. They have the power to clean out a house. However, they are only entitled to do this if the money from the sale is invested on behalf of the person they are looking after.
DeleteThe law in most provinces is written so that any person who is concerned about the welfare of a person can intervene with respect to the actions of someone under a power of attorney. Your father can certainly ask for more information. If the attorneys under the POA have something to hide they will most certainly refuse to provide any, of course. Your father should make it clear that he is alarmed at what he is seeing and is prepared to approach the court to demand that the attorney be kept on the straight and narrow.
It may turn out that the sale proceeds have been properly invested. Let's hope so. But if your father has real concerns, I hope he will look into it further because too many vulnerable people are just taken to the cleaners by unscrupulous family members.
Lynne