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Who Does a Probate Attorney Represent?
By Jonathan C. Reed
In a probate case the personal representative (see Probate Words and Terms) hires an attorney or lawyer (the two words mean the same thing).
This lawyer is the personal representative's lawyer. The duties of this lawyer to the other beneficiaries of the estate is limited. The attorney hired by the personal representative may incur personal liability if he or she deliberately helps the personal representative to defraud the other heirs. But the duty of the lawyer for the personal representative to other beneficiaries is very limited. This can best be explained by some examples.
Suppose there are 6 siblings who are equal heirs in a probate. One of the siblings is the personal represenative who has hired me. If my client is an executor, i.e., appointed by the will to serve w/o bond, my client has the right to set up their own probate bank account. If my client then "borrows" the estate money for gambling and loses, this is a situation I couldn't help and I am not liable. Still, no attorney likes to be involved in a case like that. I try to avoid such problems by asking executors I represent to run the estate money through my trust account so I can make the distributions. However, the executor does have the right to say NO, assuming the will says the executor can serve w/o bond. If my client is an administrator (court appointed rather than will nominated) then I can insist that money be run through my trust account.
Let's take another example. My client, the personal representative lives out of state and comes to Las Vegas to take care of estate business. But my client has expensive tastes and asks me to ask the Court to approve luxury travel expenses for the trip to Las Vegas. Depending on how big the travel expenses are I may decide not to fight my own client on this issue and if the court approves, that's the other heirs' problem if they think too much money was spend on travel. Or suppose the will is confusing on one point and it not clear whether my client or another beneficiary gets a particular item. I am entitled, indeed obligated, to argue my client's position.
Now let's suppose in the example of the 6 siblings there are no major conflicts. But some of the siblings who are not my client want to call me up and ask questions about the estate. I probably won't talk to them for two reasons: 1) I don't want them to think I am their attorney if there is a conflict between them and my client, and 2) It could be a very time consuming process to talk to 6 different siblings. When I visit websites in which people can ask lawyer questions I see complaints about probate lawyers who charge the estate for their time in talking to non-client heirs.
What are examples of a case where a lawyer could be held personally liable by non-client heirs? Suppose the estate's money is being run through my trust account. Now suppose the lawyer's client asks for an "advance" of some of her inheritance which is not approved by the court and the lawyer gives it to her which would be illegal. Then suppose the estate has some unanticipated debts so there is now not enough money to give the other heirs what they should have gotten. In that case the other heirs could sue the lawyer. See my page on legal malpractice at www.accidentawardslasvegas.com
Should the Estate Attorney Talk to Non-Clients?
An attorney in a probate is hired by a particular person, usually the personal representative. Ethically the attorney may not give advice to other people, including heirs who are to inherit under the will, and may not disclose confidential matters. What if an heir (that the attorney is not representing and there is no dispute in the probate) and asks the attorney for a status update not involving any confidential client disclosures? Although it may seem rude, experience has taught us that such conversations with non-clients are best avoided. The only exception would be if the client tells us, "Please take my sister's calls and answer any questions she has about the estate including any and all matters we have discussed." In that case we would need to get the client's permission to talk to the sister in writing and we would still have to be very careful not to be giving the sister any advice.
Here is an example of a lawyer getting into trouble talking to a non-client: Husband and Wife are not divorced but the marriage has fallen apart. Wife unexpectedly dies of natural causes. There is no will and it looks like the wife's estate is worth $110,000. There are no children. Wife's intestate heirs are her husband (50%) and her parents (25% each). Attorney is hired by husband. Attorney stupidly takes phone call from the dead wife's father and advises of above distribution. Parents think they are in for 50%. Then it turns out that the estate is really worth only $98,000. Under these circumstances (no children, and surviving spouse and estate worth not more than $100,000) under N.R.S. 146.070 the Husband gets the entire estate. Now, Parents, who already blame the Husband for the failed marriage, are convinced that the Husband hired a lying lawyer to cheat them. Lawyer could have avoided the whole mess by simply refusing to take the phone call from the dead wife's father, or by politely telling the dead wife's father that the lawyer represents the Husband and cannot give advice to any other party.
Likewise, when you hire us for a probate, if an estate creditor calls us we simply end the conversation with the statement that we do not talk to non-clients. (An exception would be if you authorize us to talk to or negotiate with a specific creditor.)
Will or Trust Contest Cases:
As a general rule the person named as Executor in a will and who is appointed by the Court to serve as Executor, or a person appointed by the Court to be the Administrator will get their attorneys' fees paid out of the estate and will challengers or other heirs in a dispute with the Executor or Administrator will not get their legal fees paid out of the estate. Of course, general rules have exceptions. The probate court does not want to see an Executor or Administrator abuse their appointment by taking unreasonable positions and the Court will have discretion to order that both sides' legal fees be paid out of the estate, or that many of the legal fees of the Executor or Administrator be disallowed, i.e., not paid out of the estate, but paid by the Executor or Administrator. However, an attorney representing the Executor or Administrator knows that if he or she doesn't take an unreasonable position, his or her fees will be paid out of the estate, whereas a lawyer representing someone challenging the Administrator or Executor will either have to work on a contingency fee or get paid directly by his or her client.