I wrote the book on Minnesota probate.

(Probate Issues 2 of 5) Isn’t the Probate Attorney The Lawyer For The Whole Family?

On Behalf of | Feb 1, 2012 | Assets, Attorney, Executor, Firm News, Joint Account, Preventive Steps, Probate |

A Very Common Misconception

A common misconception that many Minnesota families have during a probate proceeding is to assume that the lawyer hired by the executor is there to represent all family members. This is not so.

The Executor Hires The Attorney For Just Themselves

The executor (also known as a personal representative) hires the attorney to represent him or her in the probate proceeding. The attorney’s job is to look out for the best interests of the executor.

The best interests of the executor are sometimes not the same as the best interests of the other heirs.

A Story To Illustrate The Way It Works

Let me tell you a story about a family in Eagan. A woman we will call “Joyce” was the executor of her mother’s estate. During Mom’s last year of life, she put Joyce’s name on her bank accounts. When Mom died, there was about $40,000 in the account. Joyce retained a lawyer who we will call “Attorney Smith” to help her with the probate.

Then a question came up: does the $40,000 belong only to Joyce, or is it to be split up four ways to all the children?

Joyce thinks it belongs just to her. Her brother George thinks it should be divided between all the children.

The Brother Talks To His Sister’s Attorney

George calls Attorney Smith for his advice. George thinks the lawyer is there to decide probate issues for the entire family. As Joyce’s lawyer, Attorney Smith takes her side and says the money belongs only to Joyce.

If George thinks Attorney Smith is there to represent the entire family, he may just assume that the attorney is giving him an impartial interpretation.

You can see where the confusion can begin.

While Attorney Smith is not allowed to lie to George, or do anything unethical, the lawyer’s primary loyalty is to Joyce. Joyce is his client and Attorney Smith is obliged to protect her within legal bounds.

It Is A Good Idea To Talk To Another Attorney

When a debatable question such as ownership of a bank account comes up, George would be well advised to contact his own probate attorney for advice on questions that may affect his interest as an heir.

The best practice for Attorney Smith is to advise George when he calls that the attorney represents Joyce and not the entire family. The attorney does not have a legal obligation to tell this to George. However, it is a good idea, so as to avoid misunderstandings later on.

Attorney Needs His Client’s Permission To Share Information

Another misunderstanding can arise if George calls Attorney Smith to get copies of documents or other records. George may become upset if the Attorney Smith refuses, or says that he must first get Joyce’s approval. Once again, it is important for the family to understand that the attorney is there to assist Joyce. He cannot provide help or information to the family members unless Joyce approves.

When all the family members understand the role of the attorney for the executor, it can help avoid bruised feelings and misunderstandings. When family members disagree on how the estate should be administered, the other family members should get their own attorney.

The contents of this article are for information only and are not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.