The Probate Attorney...
Does the Probate Attorney Represent the Personal Representative, the Estate, or the Beneficiaries?*
Whether you are the Personal Representative (commonly known as "Executor") or an heir of the probate estate, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Personal Representative of a probate estate. Many Personal Representatives do not understand the probate process and leave the tasks up to the lawyer (which is reasonable because most people never manage a probate process, whereas a probate attorney does it every day). The heirs of the estate may hear only from the lawyer or may hear the Personal Representative say, “This is what the lawyer says we have to do.” This often raises the question, does the lawyer owe a fiduciary duty to the heirs of the estate since the Personal Representative owes a fiduciary duty to the heirs?
The answer to that question depends on the state in which the estate is being probated. To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.
Also, before answering the question, it is helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate:
Duty to communicate: a duty to notify the beneficiaries the estate exists, identify the Personal Representative, provide a copy of the inventory, provide copies of court filings, generally explain documents that require a beneficiary’s signature, etc. This duty to communicate is not the same thing as an attorney-client relationship, which means there is no attorney-client privilege and the attorney cannot give legal advice.
Duty to account: provide regular estate accountings, which includes explaining funds paid out of estate accounts for expenses.
Duty to treat all beneficiaries equal: distribute estate funds at the same time, if a question arises as to how something in the Will is to be interpreted the attorney cannot interpret it, the court must interpret it.