If I am an executor, administrator or trustee, do I need an attorney and who pays for it? Why spend the money?
The answer is that you should. Since the duties of a fiduciary involve actions that required legal counsel, any non-attorney executor (or fiduciary) who personally handle all estate matters (without retaining counsel) has engaged in the unlawful practice of law.
Matter of Van Patten—Representation by Counsel
One of the fundamental functions of a last will and testament is to name an executor, the person designated to oversee the orderly distribution of the assets of the estate. Though there are clearly situations where it’s essential for the executor to retain legal counsel to settle the estate in the probate court, there can also be situations where the executor might find it problematic or perhaps even unnecessary to hire a lawyer to probate a will. The estate may lack the resources to pay legal counsel. An important question, then, is whether an executor can handle all the duties required to probate an estate without hiring legal counsel.
As a general rule, in a court of law, a person need not be an attorney to represent his or her own interests.” This type of representation is known as pro se representation. However, the rule does not extend to representation of others.
A 2014 opinion from Manhattan Surrogate Court addressed the issue of whether or not an executor is required to retain legal counsel to complete his or her legal duties. In Matter of Van Patten, the court rejected the argument that an executor could act without representation from legal counsel, concluding that an executor was bound by the fiduciary duty to act in the best interests of others, and not in his or her own interests. The court further found that an executor who is a party to court proceeding is there on behalf of anyone with a potential interest in the estate. Accordingly, because those duties involved actions that required legal counsel, any non-attorney executor who personally handled all estate matters (without retaining counsel) had engaged in the unlawful practice of law.
The executor in Van Patten challenged the ruling, arguing that she was the only beneficiary of the estate, so she was essentially the acting in her own interests. The court disagreed, finding that she had a responsibility to creditors of the estate as well. The court then ordered the executor to hire legal counsel or risk have the estate’s objections to the trust accounting dismissed.
If the estate does not have the liquid funds but real estate and similar types of assets, our office has special deferred type of retainers that assist you and the Estate. Upon qualification, the legal fees can be paid at the end by the Estate or from one’s inheritance. The Estate pays for all legal fees and expenses when the firm represents the fiduciary. For a free consultation, please contact our office.
Contact the Law Office of Bonnie Lawston
At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at (631)425-7299 to set up a free initial consultation.