Who chooses the probate/estate attorney and who does the attorney actually represent?
The probate and estate administration process can be complex and overwhelming causing frustration and questions to build up as the weeks and months go by. Whether you are a named Executor under the Last Will and Testament or an heir of the estate, it is important to understand the process of choosing an estate attorney and who the attorney represents.
Who chooses the attorney? If there is a Will that names an executor (or executrix, if female) and that executor is able and willing to serve as executor, then the executor will choose the attorney. If there is no Will (known as an intestate estate) or the named executor and successor executors are unable or unwilling to serve, Pennsylvania law will determine who has the right to serve. If there are multiple parties that share the right to serve, those parties can either serve together or can renounce their rights and ask the Court to appoint just one (or more) of those parties to serve. In the case of an intestate estate, the person appointed is called the Administrator (or Administratrix, if female). In this case, the Administrator chooses the attorney.
Does the executor have to use the attorney that prepared the Will? No. In the event that an attorney prepared the Will and either released the original to the client or maintained the original in his/her law office, the Executor is not obligated to use the estate planning attorney for the estate administration. In fact, estate planning lawyers are obligated to inform all parties that the executor is not required to retain them for probate/estate administration after the client's death. The Executor can choose to use that same attorney if he/she wishes, or can request to obtain the original Will and retain another attorney outside of the law firm.
Who does the estate attorney represent? In Pennsylvania, the estate attorney represents the executor/administrator only to assist him/her in carrying out the estate according to the laws of Pennsylvania. Many beneficiaries mistakenly believe that the estate attorney becomes the "family attorney" or that the attorney represents all of the beneficiaries, but that is not the case. The executor/administrator tends to be the point of contact for the beneficiaries and keeps them "in the loop" regarding the status of the estate. The attorney may also decide to keep the beneficiaries informed throughout the estate administration process, or include them in significant decisions/changes, but the attorney has no obligation to do so. Doing so tends to help alleviate frustration as the process can be long and confusing; however, this is just a courtesy. If the beneficiary becomes difficult or aggressive towards the attorney, the attorney has no obligation to communicate further with the beneficiary. Furthermore, if an heir wishes to challenge decisions or actions taken during the course of the administration, that heir would need to retain outside counsel (or represent himself) as the estate attorney hired by the executor would not be able to represent the said heir. If the heir retains outside counsel, that counsel represents the heir only.
Ultimately, the goal is to settle the estate smoothly and efficiently. Barton Law is here to guide our executors/administrators through the often-complicated estate administration process. If you have specific questions or would like to schedule an initial consultation, please call 267-625-8877, e-mail us at email@example.com or schedule your appointment on our "Practice Areas and Online Booking" page.