N. C. C. C., strictly prohibits a personal representative from engaging in transactions with the estate in which the personal representative has a conflict of interest or derives a personal benefit. If these facts were present, the attorney would likely be conflicted out of the representation of the personal representative and the heir.
The North Dakota Supreme Court has held that it is not a conflict of interest for the personal representative to be removed solely because he or she claims an interest in joint estate property.
Mere fact that personal representative has an interest in the estate is generally insufficient conflict of interest to justify removal of the personal representative, and personal representative should not be removed solely because he or she claims joint interest in estate property of the decedent. N. D. C. C. § 30.1-17-11, subd. 2( citing 31 Am. Jur. 2d Executors and Administrators § 291( 1989).
The rationale behind this general principle is clear. If a mere interest in an estate creates cause to remove a personal representative, few people would ever be able to serve as a personal representative. The Appellate Division of the New York Supreme Court aptly noted this rationale when it stated:“ Any other view would automatically disqualify from appointment as executor a partner, a joint owner of property, a legatee, a creditor, a debtor, a distributee, a spouse, or one who is a party to an executory contract with the testator. Few would remain eligible.” In re Foss’ Will, 282 A. D. 509,513, 125 N. Y. S. 2d 105, 109( 1953).
In North Dakota, as in other states, it is commonplace for individuals to hold property in joint tenancy. This type of ownership is especially prevalent in family situations, as when property is held jointly between spouses, or between parents and children. We believe that it would be ill advised to hold that individuals cannot serve in a personal representative capacity merely because they own property jointly with a decedent. Thus, we agree with the decision in Meyer’ s Estate, supra, that a personal representative should not be removed solely because he or she claims a joint interest in estate property of the decedent. Under those circumstances, we believe that it would be improper for a court to conclude that cause existed for removal, and that it would be an abuse of the court’ s discretion to remove a personal representative for conflict-of interest purposes on that basis alone.
Jarmin v. Shriners Hosps. for Crippled Child., 450 N. W. 2d 750, 753( N. D. 1990); see In re Estate of Howser, 2002 N. D. 33,, 17 639 N. W. 2d 485, 490( finding the personal representative successfully rebutted statutory presumption of conflict of interest, when personal representative acting under durable power of attorney was paid personally for land management fees); see also In re Hass, 2002 N. D. 82,, 10, 643 N. W. 2d 713, 717(“ The appellants have failed to show how Johnson’ s alleged conflict has rendered him unable to fairly represent the intestate estate and DeKrey as its personal representative.”).
In determining whether the representation will not be adversely affected, the attorney can look to the Uniform Probate Code and applicable case law for additional guidance on representation of the personal representative that is also a beneficiary of the estate. The attorney could fairly represent a person as personal representative and beneficiary of an estate so long as the attorney satisfied N. D. R. Prof. C. 1.7( c) by obtaining the informed consent of the client of the representation in both capacities.
An attorney has been disciplined for failing to obtain the informed consent of co-personal representatives that were siblings and beneficiaries of their mother’ s estate. In re Disciplinary Action against Mcintee, 2013 N. D. 111,, 4, 833 N. W. 2d 431,432. In that case, the attorney prepared the mother’ s will, naming the co-personal representatives, and knew the mother included severe limitations on the use of the land they inherited. Id. The lawyer did not advise the co personal representatives they could hire their own attorney and had no fee agreement. Id. at, 15.
The third question will not be addressed because it does not ask a question regarding the professional responsibility of the attorney, rather the ethical obligations of the personal representative and her conduct as attorney-in-fact prior to the decedent’ s death.
The remaining questions, 4 and 5, will not further be addressed in this opinion. The Ethics Committee only addresses requests addressing issues of prospective conduct and will not address issues related to past conduct. The applicable portion of N. D. R. Prof. C. 2.3( a) states: A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. The remaining guidance under mediators falls under the North Dakota Rules of Court 8.9, and Code of Mediation Ethics found at Appendix A to Rule 8.9.
CONCLUSION Although a conflict of interest exists for an attorney representing a personal representative who is also a beneficiary of an estate, this is not an impermissible conflict of interest. The lawyer may represent the personal representative and beneficiary as long as the attorney analyses the conflict and determines after consent that representation can proceed. If a substantial discrepancy exists, or incompatible positions arise, the attorney will have to withdraw from representation and separate counsel would need to be obtained.
This opinion was drafted by Katrina Turman Lang and was unanimously approved by the Ethics Committee on the 23 day of October, 2025.
This opinion is provide under Rule 1.2( B), North Dakota Rules of Lawyer Discipline, which states:
A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter.
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