Who Does the Estate Attorney Represent?

Who Does the Estate Attorney Represent?

When a loved on passes away, managing the estate can be a complicated process involving lots of legalities.  Many estates hire an attorney to help with probate, administration, and to provide general guidance to ensure that the decedent’s assets are distributed to the appropriate person, in accordance with their Will, Trust, or State Law.

What Does the Estate Attorney Do?

The attorney is hired by the executor/administrator to assist in their duties managing the estate, by advising them on their duties and responsibilities, and preparing any necessary legal documents.

Among other things the attorney will:

• Coaching and Guidance. The attorney should coach the executor/administrator on the general process.  Inform you of the legal filings, notice requirements, tax forms, and whatever else needs to be done to comply with the law.
• Legal Filings. Nobody can act without proper legal authorization.  That could mean filing a small estate affidavit if the estate is below the statutory limit, ensuring a smooth transition to a successor Trustee, or opening probate with the court to have an executor appointed, if there’s a will, or an administrator if there’s no Will.
• Identify and Access Assets. The attorney can advise on how to access the decedent’s assets, such as bank accounts, life insurance, or retirement accounts.
• Costs and Compensation.  Executors/Administrators are entitled to a fee for their work and may need to hire various service providers in dealing with the estate.  In addition to advising on compensation matters, the attorney often has connections to services that the estate may need.
• Creditors. The attorney will advise on what the estate’s duties to creditors are, including how to ensure valid claims are paid and questionable claims are challenged.
• Problem-Solving. If disputes arise among beneficiaries or if complications with the Will or Trust emerge, the attorney assist the executor in resolving these matters.
• Distributions.  The attorney can advise on how and when any remaining assets should be distributed, and can assist in preparing a final accounting.

The Attorney Represents the Executor, Not the Heirs!

 A common misperception is that because the estate is paying for the attorney, the attorney represents the estate and must look out for the interests of the beneficiaries.

It’s very important to understand that the attorney hired by the estate does not represent the estate itself, but the executor or the administrator of the estate.  That means the attorney is not on the side of the heirs.

While most estates are resolved with little conflict, if a beneficiary wants to know what their rights are or whether the executor’s interpretations and actions are proper, the beneficiary cannot rely on the estate’s attorney, but should seek independent legal counsel.  This is particularly true if the beneficiary suspects foul play, because while the attorney cannot help the executor/administrator cheat the beneficiaries, the attorney cannot force the executor to act in any particular way, and cannot advise heirs in conflict with the executor.  If the executor is acting improperly, the most the attorney can do, and sometimes must do, is resign.