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Wednesday, October 10, 2012

Can the estate lawyer act against one of the executors?

I received an interesting question today by way of my Facebook page. I think it's interesting because at the core of the question is the role of the lawyer for the estate. This is a very poorly understood role. The beneficiaries think the lawyer works for the beneficiaries. The executors think the lawyer works for the executors. The lawyer may not do a good job in explaining it.

Here's the question:

"There are three executors on an estate. A directive in the will states that one of the executors who lives on an estate property must vacate the property by April 2012. She has stalled and has received a letter about this from the estate lawyer. She is ignoring the directive in the will and the lawyer is dragging his heels. What can the other executors do to get her out?"

My guess is that the letter from the lawyer did not include any demands that she leave the property, or even a request that she do so. It most likely simply reminded her of what's in the will and of her obligation to act on behalf of the estate and suggested that she keep that in mind.

Why?

The estate lawyer works for the executors. The lawyer can't act for the executor on the estate as well as against her on the same estate. Legal ethics and common sense both preclude that. So the estate lawyer isn't in any position to demand that she leave. He/she should have explained that when agreeing to write a letter.

I hope that the first thing that was done was to check the will to see whether it contains a clause saying that the executors can make decisions based on a majority vote. Without that clause, all decisions must be unanimous by all three. This is yet another major drawback of home-made wills (which I assume this was, to appoint three executors. Why on earth did this person appoint three, anyway?). Any lawyer who has been around the estate-planning block knows to include a majority vote clause when there are three executors. If that clause is present, the two executors can simply out-vote her on the question of whether they are going to evict her forcibly.

In the absence of the majority vote, if the executors of this estate want this person forced out of the property, they are going to have to hire a separate lawyer to do that. Other legal issues will come into play, as they are only two of the three people with the legal right to give legal instructions on behalf of the estate. Unfortunately one is being selfish and ignoring the law, and this will probably end up involving an application to remove her as executor based on her detriment to the estate.

Another bit of fall-out is that the estate will likely end up needing a new estate lawyer. The general rule when one lawyer acts for several people is that if those people end up in a fight, everyone has to get a new lawyer. The first lawyer can't represent any of them any more. If the probate has already been granted, this is probably not a big deal.

Of course, communication between the executors is going to deteriorate even further if one is evicted as discussed above. Hopefully she will be removed entirely from her executor role, as otherwise future decision-making between the three is going to be a nightmare. None of this is good for the estate, but this is the kind of thing that happens when people make a poor choice of executor.

4 comments:

  1. Nice blog. I had fun reading this. And it is easy to understand. Nice going.
    Macon Lawyers

    ReplyDelete
  2. Matters turn very ugly and complicated, where property or real estate comes into the picture. There have instances where families have fallen apart, due to difference of opinion, over property. Siblings, parents-child has faced each other in the court of Law, over matters of property.

    ReplyDelete
  3. When a co executor does not want a sedan that was left behind as a co executor can i take it and register it?

    ReplyDelete
    Replies
    1. If you're a co-executor, no you don't get to take anything from the estate. Neither does the other co-executor. you can buy it from the estate but you are not entitled to keep anything if you don't buy it at fair market value.

      Lynne

      Delete

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