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Wednesday, May 23, 2018

You're a beneficiary. Do you need your own lawyer?

One of the most misleading phrases heard in relation to estate administration is the term "lawyer for the estate". Why is it so misleading? Because beneficiaries, who logically assume that as heirs of the estate they are represented by the estate lawyer, are completely incorrect in that assumption.

I regularly receive calls and emails from beneficiaries of estates not being handled by my office. They are bewildered, frustrated, and sometimes angry because the lawyer handling the estate won't answer their questions or do what they instruct the lawyer to do. They want me to slap that misbehaving lawyer into shape, or perhaps to complain to the Law Society. Recently I dealt with an estate in which I received a heated rant on a weekly basis from a beneficiary who was in a rage because I wouldn't agree to call him and consult him on how and when things should be done.

All of this emotion is completely misplaced.

The estate lawyer does not work for the beneficiaries. He or she works for the executor of the estate. It is actually the executor who works for the beneficiaries, so the anger against the lawyer, if anger there must be, should be directed at the executor.

In a perfect world, the executor does a great job representing the interests of the beneficiaries. The lawyer obtains the probate from the court and advises the executor on estate issues and procedures and all is well. Most of the time, a beneficiary doesn't need his or her own lawyer because everything works reasonably well. All estates hit one or two small snags but generally not enough to cause a serious dispute. Sometimes things happen just as they should. Then again, sometimes they do not, and this is where the problems begin.

When a beneficiary is having a problem with the executor, the solution is not to contact the estate lawyer for help. The lawyer works for the executor and therefore cannot help the beneficiary. If the lawyer becomes aware that there is a dispute between those parties, he or she can suggest solutions or arrange mediation. Most of us will try really hard to ensure that an estate doesn't slide off the rails into litigation. If the executor refuses to do those things, the lawyer cannot force them.

So where does this leave the beneficiary?

As a beneficiary, your first line of communication and information is through the executor. Even if you don't especially like that person or you think his or her responses are too slow, the executor should be the first one you approach. If the communication breaks down so badly that you need outside help, you will likely need your own lawyer to assist you. After all, if every conversation ends up in a shouting match, nothing is being accomplished. You will want someone else to speak on your behalf.

If it is a dispute that requires court intervention, you will more than likely want a lawyer to assist you through the complicated estate process.

Often a beneficiary doesn't have a dispute but needs advice. For example, should you sign the Release? Why can't you have a copy of the will? Is there something missing from the accounting? If all you need is information about the estate process, the estate lawyer can probably give that to you. But don't ask the estate lawyer for legal advice about what you should do. Remember that he or she does not work for you.

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