An estate attorney is the attorney who is hired to assist the personal representative in a probate or heirship proceeding. Personal representative, is a generic title that refers to the person who is responsible for managing the administration of the estate after an individual passes away. This person is appointed by the court. The administration of the estate involves the management and distribution of an individual’s assets, known as the “estate,” following their death. The personal representative may be a person or an institution and is considered a fiduciary under the law, meaning that they have legal obligations, mainly owed to the heirs of the estate. The personal representative’s duties include applying for probate or an heirship proceeding and ensuring that the heirs receive assets according to the deceased individual’s wishes (when there is a will) or according to state law (when there is no will). When an estate needs to go through the probate process or an heirship proceeding, the personal representative is also the one who hires an estate lawyer.
THE PROBATE AND HEIRSHIP PROCESS
Probate is a standard legal procedure formalizing how legal title on assets is passed from the deceased to their designated heirs when there is a will. An heirship proceeding, usually done through probate court, allows title to assets to be transferred from the deceased to their heirs at law when no will has been executed. Whether or not probate or an heirship proceeding is necessary depends in part on the type of property as well as the state laws where the deceased individual resided. These processes can be complex for large estates, but it’s often a simple and straightforward process for most Americans. Essentially, probate and heirship proceedings grant a judge the legal authority to transfer title to assets.
Starting the Probate or Heirship Process
If you are the personal representative hiring the attorney, you should ask about the law governing probate or heirship. You will be hiring the attorney to help ensure that you are fulfilling your legal obligations to the estate and the heirs. As a beneficiary or heir of the estate, you may wish to consult with an independent attorney to better understand your rights in the probate or heirship process.
Typically, when you receive a letter from the estate attorney, it will state something similar to, “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 estate to go smoothly. Understanding the estate lawyer’s role will go a long way toward achieving that goal.
The Role of the Estate Lawyer
Whether you are a personal representative or an heir of the probate estate, knowing the estate lawyer’s role is important. 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 estate attorney.
Many personal representatives don’t understand the probate or heirship process and end up leaving all the tasks up to the lawyer. Meanwhile, the heirs of the estate may hear the personal representative say, “This is what the lawyer advises us to do.”
A personal representative has an obligation to act in the best interest of the estate’s beneficiaries and heirs. This means the executor is acting in the role of a fiduciary. A fiduciary is an individual or entity given the authority to act on behalf of another party, carrying with it the legal responsibility to act in the best interests of that party.
If the personal representative owes a fiduciary duty to the heirs of the estate, then does the lawyer whom they hired also owe a fiduciary duty to the heirs? The answer to this question is likely state dependent. In Texas, the fiduciary obligation of the attorney is owed to the personal representative to properly advise them of their obligations to the estate and the heirs of the estate.
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 an attorney to serve the individuals who stand to benefit from a trust. Or a guardian or conservator may hire a lawyer to serve in the best interests of a ward. The answer will vary depending on each different circumstance.
Fiduciary Duties of the Personal Representative
The fiduciary duties of the Personal Representative include the following:
- Duty to communicate: this involves informing heirs about the existence of the estate and furnishing them with an inventory copy and court filings. Please note that this doesn’t establish an attorney-client relationship and lacks attorney-client privilege. Personal Representatives who maintain transparent communication, such as by disclosing conflicts of interest, can mitigate claims of favoritism among heirs.
- Duty to account: the Personal Representative 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: Personal Representatives must keep details related to the estate and its heirs confidential. However, not all details will be kept confidential as probate and heirship proceedings by their very nature are matters of public interest and all filings will be a matter of public record.
- Duty to treat all beneficiaries equally: the executor must distribute estate funds at the same time. If questions arise about will interpretation, attorneys cannot provide interpretations; instead, the court is responsible for this task.
Fiduciary Duties of the Estate Attorney
So back to the question: does the estate lawyer owe a fiduciary duty to the heirs of a probate estate? The answer is not definitive, because 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 personal representative 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, including Texas, 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 personal representative to the heirs as unique from the fiduciary duty owed by the lawyer to the personal representative. Also, these states want to maintain the executor’s ability to have protected communication with the attorney.
A small subset of states, such as California, New Mexico, and Illinois, employ a balancing test to determine the true intended beneficiary of the attorney-client relationship – whether the personal representative or the heirs. Each state has its own set of test criteria, with courts commonly questioning whether the personal representative or the heirs were the intended beneficiaries of the attorney’s services.
Whether you are a personal representative or an heir, it can be daunting to understand and navigate probate court. Being able to trust and have confidence in the legal professionals with whom you are working is essential and will alleviate stress.
Bromlow Law, PLLC and Laura L. Bromlow, are dedicated to the practice of Elder Law and Estate Planning. Our practice focuses solely on working with clients in these and closely related legal fields. Laura L. Bromlow is a Certified Elder Law Attorney with the National Elder Law Foundation. Bromlow Law, PLLC strives to enhance communication among family members and loved ones and to keep them all out of conflict so they can stay out of court. We want to help you keep your close circle safe!
Please contact our office today at (281) 665-3807 to schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.