Monday, December 3, 2012

Whose fault is it? The executor or his lawyer?

I've known for years that most people don't really understand the role of the lawyer who acts for an estate, but lately I've been reminded of just how unfamiliar people really are with the lawyer's job. I receive many emails a day from readers, and a good number of them ask about (or complain about) what the lawyer is supposed to be doing. Recently I received an email in which a reader said she had laid a complaint with the provincial Law Society because the executor's accounting had not been done.

Apparently that reader, like many others, doesn't see the difference between the executor's duties and the lawyer's duties. Making an official complaint about the lawyer when it's the executor who has dropped the ball isn't going to accomplish anything. As most people are not exposed much to estate matters, this lack of familiarity is only to be expected. I thought it would be a good idea to chat a bit about what to expect from a lawyer working on an estate.

The basic relationship is that the lawyer works for the executor on the law-related aspects of an estate. Usually this means applying for probate. The lawyer should be a source of information and advice for the executor, but at the end of the day it's the executor who decides which steps to take and which to ignore. The lawyer can't force the executor to do anything or not do anything.

It's not the lawyer who changes the locks on the house or gives away Mom's jewelry or prepares an accounting. Those are all done, or not done as the case may be, by the executor. From time to time an executor will ask a lawyer to take on more tasks than simply applying to the court for probate. For example, the executor might ask the lawyer to handle the sale of the house. Keep in mind that the lawyer can't decide to sell the house; he or she can only do this on the instructions of the executor. If the executor decides to hold onto the property for years, there is nothing the lawyer can do about that.

A very common complaint on estates is that the beneficiaries can't get information about the estate from the executor or from the lawyer about what the executor is doing. Some individuals are furious with the lawyer for not telling them anything. Having been in that lawyer's shoes, I can only remind people that if the executor doesn't tell the lawyer what he or she is doing, the lawyer doesn't know and therefore the lawyer doesn't have any information to share.

The lawyer's client is the executor. This means that the lawyer can't and won't take instructions from the beneficiaries who call up and insist that the lawyer do things the way they want them done. The lawyer works for the executor. The executor works for the estate.

To break it down a bit further, let's look at a typical probate application. The lawyer prepares the documents but all of the information in the documents comes from the executor. The inventory of the estate, the value placed on items, information about the beneficiaries - all of this is given by the executor to the lawyer.

The lawyer will read the will and give an opinion on its validity. The lawyer will interpret the will according to law and advise the executor on what the terms of the will (such as trusts, conditions or contingencies) mean.

The lawyer will tell the executor what his or her executor's duties are. For example, the lawyer will advise the executor of the requirement to file income taxes. However, it's up to the executor to follow the advice and file the returns.

I hope this discussion has clarified things somewhat. My best advice to anyone - either executor or beneficiary - who needs to consult a lawyer about an estate is to find a specialist. Find a lawyer who has plenty of experience with estates and things will go a lot more smoothly.

1 comment:

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