malloryg8r Asked October 2015
Does the executor have a choice of attorney?
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I am Executor for my parents' estate. Their attorney retired a year ago, and their practice, well I didn't like the options left. So I went to another law office of my choosing. My 4 siblings are incensed that I did not stick with the same law office as my parents used. I feel stuck. I thought I would be able to choose the people I felt most comfortable with, since these lawyers are so expensive I want to maximize communication. Is there some law that says I have to use the lawyer that wrote up the Will? I do have original copies of everything.
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but, my sibs were always unsupportive and un-appreciative are of all the caregiving I did for both my parents, and there was a very tiny compensation I received, for which I insisted be signed, and I reported the small income on my income taxes. It was not even $5,000 per year. I cannot think of anything else that they would be upset about.
However, the cost of my lawyer (to respond to their Inquisition) and the cost of their lawyer, is probably $15,000 combined. So who is really "gaining" anything out of this?
What is really happening, is the sibs are forcing me to run around finding all the past documentation, and depleting the Estate account. Net effect is there won't be any money left, to get compensated for handling the Estate. If that is their goal, they have achieved it. But it has always been that way---I have forked over a huge part of my life for about 15 years.... not so much time in the beginning, but definitely my parents both depended on me for tons of help.
And now, handling their Estate, it is just more of the same. A TON of work, and little to no compensation. I suspect this is the way it is with most Caregivers (and why we have so many people writing in here on Aging Care, "how can I get compensated for taking care of mom?").
This is a TON of work, and if there is anything in the Estate, it should be going to the Caregiver and Executor---not lawyers!
If the client was Mallory's father, there attaches to the work performed for him a client privilege which binds his attorney from revealing details. Then it can get sticky, as to whether that privilege abates after his death or if it transfers via the estate planning documents to his executor, executrix or trustee (if he had a trust).
I have also heard but haven't verified it that on death, the client privilege and confidentiality issue ceases.
I have never been involved with a case in which a former attorney, retired, or his/her law firm, was involved in a subsequent lawsuit by siblings, so I'm really not sure how his confidentiality could or could not prevent him from testifying.
As to any testimony they might be able to give, it could be as to the specific assets, approximate value, proxy appointments, etc. I would think the sibs would want to establish that there were certain assets, bequeathed to your mother or to your siblings, and that those assets haven't been managed properly. That seems to be the gist of fiduciary challenges.
It isn't that the law firm stands to gain. It's that if someone from the firm is subpoenaed, there is a legal obligation to appear. If your sibs file a lawsuit and their attorney subpoenas someone from the discharged firm, someone will have to appear or face contempt of court charges for refusal to appear.
If the subpoena is a duces tecum one, that requires making available specific documentation (or "all" docs) in the file the attorney created for your father or mother, or both.
There might be a mitigating factor in choosing another firm, though, as the original attorney involved has retired. So you have a legitimate reason for choosing another firm if you weren't comfortable with the attorneys remaining at the firm.
But a subpoena could easily be issued for the retired attorney as well, even though he or she may not remember all of the details of the estate plan.
The time stamped copies of anything you file used to be called "true copies". I haven't done litigation in some time, so I don't know if that's still the nomenclature.
Igloo, I think what you're referring to in terms of malfeasance is "breach of fiduciary duty."
Mallory, what do you think is behind the issue of your sibs challenging your choice of attorneys?
It seems sadly that your siblings want you discredited at any cost as they have hired their own legal and are requesting items that could lead to forensic accounting reviews. I'd suggest fir you to speak clearly with your probate guy as to how much exposure you could have for whatever you did as dpoa and as executor which placed debt on the estate.
If the new executor sends you a w-9 & an I-9 forms, could be very ugly.
If the estate has assets, you can & should be paid from those assets an executor administration fee in addition to the above claim(s). The fee schedule depends on your states laws. You want to get this in and filed before the executor resignation of yours is filed. Ask your probate guy how the courthouse does this. If you can actually do this yourself, do it. The court I'd bet has a time stamp. I'd have hubby drive you over, and you run in & do.....first claims filed & stamped; then executor fees; then resignation letter. Then go have margaritas or visit moms grave and vent.
There's going to be $ from the sale of the home even after the mortgage issue, right? You want whantever filed so you have to be included in estate settlement is done with whichever sibling is the new executor.
Also it may give you some leverage if they attempt to come after you personally for " lack of proper DPOA or executor duty" or whatever this is termed. Good luck with whatever you decide to do.
Mallory Isn't your situation that your siblings have hired their own legal & probably are setting up to challenge your appointment & actions? If so, their legal will or has contacted the old firm. What I'd be concerned about is If the old firm also did your fathers probate and there was a solid estate left to your mom and now mom has died and her estate has debt.....this is super sticky as it could imply your inability to have properly managed her finances. The old firm, since you basically fired them, has no allegiance to you as a client and could well testify as to actions you took that they advised against. Does your probate guy do litigation? My experience is that most probate atty do not do litigation, now dealing with sorting out or negotiating claims or debts they routinely do. But litigation involving challenges to executor appointment or executor actions is quite a different matter. If your probate guy doesn't, I'd ASAP get additional legal who does.
And based on the siblings conspiratorial actions, demanding backup data and hiring their own attorney, I think this is just another one of their harassment tactics.