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Monday, June 21, 2010

Can a lawyer act for an executor and for the beneficiaries?

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.


  1. Question ???

    If 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???

  2. 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.

    The 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?

  3. 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.

    1. There 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).


  4. Well thanks, Wheaton Probate people! It sure is nice to get a thumbs-up from someone who knows wills and estates law.



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