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Wednesday, October 27, 2010

Does the executor have to hire the lawyer who drew the will?

Recently a reader asked whether an executor who wants to apply for probate must use the lawyer who drew up the will for the deceased. This question is of particular interest to an executor when he or she has to pick up the original will that is stored in the lawyer's office or vault.

Usually the lawyer who drew up the will has signed as a witness with a second person, often a legal assistant, acting as the second witness. The lawyer's name or the law firm's name usually also appears on the cover of the will or on a special backer that has been attached to protect the will document. None of this means that the executor must hire the lawyer to apply for probate. The executor can hire any lawyer he or she wants (or can do it without a lawyer in some circumstances).

In a few wills, the testator will have included a clause in the will itself that asks the executor to use a certain lawyer for the probate. This is rarely included, but when it is present, it's often because the lawyer has a strong relationship with the deceased's family, or because the estate is particularly complicated and the lawyer knows the details quite well.

If this clause is phrased properly, it will be worded as a wish of the deceased that the executor hire this lawyer if it seems to be the best idea at the time and under the circumstances. It's not a good idea for an executor to command that a certain lawyer be used, because at the time the will is made, it would be impossible to know whether the lawyer would still be alive, competent and practicing law when the deceased passed away.

A clause like this that contains an unenforceable request by the deceased is called precatory. It's a wish only. The executor doesn't have to follow the request if he or she believes it's not the best thing for the estate. However, if an executor is faced with a will that directs that a certain lawyer be hired for the estate, he or she should at least investigate the idea to discover why the deceased wanted this arrangement. It was likely made for a good reason, as these requests are rare.

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