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Probate Attorney

In estate planning, the executor, or personal representative, is responsible for managing the administration of the estate after an individual passes away. An executor may be a person or an institution. Their duties include applying for probate and ensuring that the heirs receive assets according to the deceased person's wishes. When an estate needs to go through the probate process, the executor is also the one who hires a probate lawyer.

What Is Probate?

Probate is a standard legal procedure formalizing how some assets pass from decedents to their chosen heirs. Whether or not probate is necessary depends in part on the type of property as well as the state laws where the decedent lived. While probate can be a complex process for vast estates, it’s often a simple formality for most Americans. Essentially, probate allows a judge to give legal permission for assets to pass whether or not there is a last will.

The Role of the Probate Lawyer

Whether you are an executor or an heir of the probate estate, knowing the probate lawyer’s role is essential. Consider it one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating an estate is understanding the role of the probate attorney.

Many executors don’t understand the probate process and end up leaving all the tasks up to the lawyer. Meanwhile, the heirs of the estate may hear the executor say, “This is what the lawyer says we have to do.”

An executor has an obligation to act in the best interest of the estate's heirs. This means the executor is acting in the role of a fiduciary. If the executor owes a fiduciary duty to the heirs of the estate, then does the lawyer whom the executor hired also owe a fiduciary duty to the heirs? The answer to that question depends on the state in which the estate is going through probate.

To be clear, this question focuses specifically on whether a lawyer owes the heirs of a probate estate a fiduciary duty. It does not address whether a lawyer owes a fiduciary duty in other contexts.

(For example, a trustee may hire a lawyer to serve the individuals who stand to benefit from a trust. Or a guardian or conservator may hire a lawyer to serve for in the best interests of a ward. The answer will vary depending on each different circumstance.)

Fiduciary Duties of the Executor

Before answering the question, it’s helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate:

  • Duty to communicate: This includes notifying the heirs that the estate exists and providing them with a copy of the inventory and court filings. (Note that this isn't the same thing as an attorney-client relationship; no attorney-client privilege exists.) An executor who maintains open communication, such as when disclosing any conflicts of interest, can also better avoid any claims of favoring one heir over another.
  • Duty to account: The executor is legally responsible for providing regular estate accountings. This includes explaining funds paid out of estate accounts for expenses and maintaining detailed documentation.
  • Duty of confidentiality: As part of their fiduciary duties, executors also must keep details related to the estate and its heirs confidential.
  • Duty to treat all beneficiaries equally: The executor must distribute estate funds at the same time. (If a question arises regarding how to interpret something in the will, the attorney can’t interpret it. Instead, the court is responsible for doing this.)

Fiduciary Duty of a Probate Attorney

So, back to the question: Does the lawyer owe a fiduciary duty to the heirs of a probate estate? It depends on the state in which the estate is being probated.

Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the executor. In these states, the executor owes a fiduciary duty to the heirs, and the lawyer owes a fiduciary duty to the executor. Therefore, the duty flows from the executor to the lawyer.

Most states, however, take the position that the lawyer doesn’t owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the executor to the heirs as unique from the fiduciary duty owed by the lawyer to the executor. Also, these states want to maintain the executor’s ability to have protected communication with the attorney.

Another small set of states, including California, New Mexico, and Illinois, apply a balancing test. This determines who was the actual intended beneficiary of the attorney-client relationship – the executor or the heirs. Each state has established its own test criteria. One common question the courts may ask is whether the intended beneficiary of the attorney’s services was the executor or the heirs.

Starting the Probate Process

If you are the executor hiring the attorney, ask what the law is regarding probate.

If you are an heir of a loved one's estate, the lawyer should be able to give you some guidance. If the probate estate is in one of the majority states, the first letter from the attorney should start with a sentence that reads something like, “I have been retained by Mr. Smith, executor of the estate of Ms. Smith. Please note that I do not represent you.” Otherwise, you may want to call the attorney and ask for more information.

Everyone’s goal should be for the settling of the probate estate to go smoothly. Understanding the probate lawyer’s role will go a long way toward achieving that goal.

It can be daunting to understand and navigate the ins and outs of probate court, whether you are the executor or an heir. Having trust and confidence in the legal professionals with whom you are working is essential, so be sure to connect with your attorney.

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