ADVICE FOR EXECUTORS: KNOW YOUR RIGHTS WHEN IT COMES TO PROBATING THE WILL

A good executor wants to respect the Deceased’s wishes. But when it comes to the choice of lawyer, the Deceased’s wishes shouldn’t carry the day.  Many executors mistakenly think that the lawyer whom the Deceased hired to draft the Will should be the one to “probate” it (i.e., submit it to court along with an application for a Certificate of Appointment of Estate Trustee). And unfortunately, some lawyers seem to make the same assumption, and hold themselves out as effectively already hired for the job.

That assumption is especially common when the drafting lawyer has been storing the Will in the meantime, and the executor needs to contact them to get the original. Rather than releasing the Will, sometimes the lawyer starts discussing the content and timing of a probate application, as though they own the Will or have some right to be hired for the job of probating it. While this may be inadvertent, it leads to unfairness. The client does not realize they have a right to review retainer terms (including cost!) upfront and to say no if they don’t like those terms. Clients might pay more than they want or need to, or end up hiring a lawyer they aren’t comfortable with, because they did not understand they have a choice.

The executor can always demand the release of the original Will and take it to a lawyer of their choosing. The testator cannot enter into a future retainer agreement with a probate lawyer in advance of their death, or bind their executor to their choice of lawyer. And legally speaking, the Will is not the property by the lawyer who drafted it, even if that lawyer has agreed to store the Will. A Will is the property of the testator, which means that it becomes the property of the executor after the testator’s death.

The lawyer who drafted the Will has no special knowledge or expertise beyond any other lawyer who does probate. Sometimes, they have less, because probate and estate administration might make up only a very small portion of their practice. And if there is anything contentious involving the Will (for example, a beneficiary has concerns about its validity or is threatening a Will challenge) then the lawyer who drafted the Will should absolutely not be acting for the executor. They are a potential witness and in a conflict of interest. The executor should retain a new lawyer with no involvement in the Will drafting.

If you find yourself named as executor in a Will, know that you are free to choose your own lawyer. As with any other service, shop around. Find the price and the person you feel comfortable working with. While your deceased family member or friend may have chosen to hire that lawyer, you don’t have to.

As a further tip, be cautious if a lawyer tells you that you must pay a fee before they can release the Will to you, or that they are entitled to be paid for their time retrieving it. Ask to see the retainer agreement or other contract signed by the testator entitling the lawyer to be paid a fee for storage or retrieval.

 

Laura Cardiff

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.