PROBATE CORNER
PROBATE CORNER
Limits On An Attorney ’ s Representation In Estates
DAVID M . GARTEN
Issues : Can a personal representative actively participate in the estate litigation where all of the potential heirs are before the court ? Can the personal representative ’ s attorney also represent a beneficiary in the litigation ?
The nature and extent of the lawyer ' s duties to the beneficiaries of an estate may vary according to the circumstances . The lawyer for the personal representative (“ PR ”) owes some duties to the beneficiaries of the estate although he does not represent them . See In re Estate of Gory , 570 So . 2d 1381 ( Fla . 4th DCA 1990 ) wherein the court held : “ We have no quarrel with the view that counsel for the personal representative of an estate owes fiduciary duties not only to the personal representative but also to the beneficiaries of the estate ." See Matter of Estate of Larson , 103 Wash . 2d 517 , 694 P . 2d 1051 ( Wash . 1985 ). This does not mean , however , that counsel and the beneficiaries occupy an attorney-client relationship . They do not . " In Florida , the personal representative is the client rather than the estate or the beneficiaries ." Rule 4-1.7 , Rules Regulating the Florida Bar ( comment ).”
The lawyer ' s duties to the beneficiaries , which are largely restrictive in nature , prohibit the lawyer from taking advantage of his position to the disadvantage of the estate or the beneficiaries . In addition , in some circumstances the lawyer may be obligated to take affirmative action to protect the interests of the beneficiaries and inform them of their legal rights . As a result , some courts have characterized the beneficiaries of an estate as derivative or secondary clients of the lawyer for the PR . See American College of Trust & Estate Counsel , Commentaries on the Model Rules of Professional
Conduct . Commentary on MRPC 1.2 , at p . 36 ( 5th ed . 2016 ). For example , in Florida Bar Ethics Opinion 76-16 ( 4 / 8 / 77 ), the committee found that the attorney for the PR has the right and in some circumstances a duty , to inform the surviving spouse of her legal rights under the Florida Probate Code such as entitlement to family allowance , exempt property , or right to claim an elective share . This is to be distinguished from counseling or giving legal advice to the surviving spouse .
In a contested matter , it is neither appropriate nor proper for the PR to take an affirmative position for or against any faction claiming a right to the estate of a deceased where all of the potential heirs of the estate are before the court . It is the responsibility of the various claimants to establish their own rights , if any , in the estate . The PR under such circumstances is , in effect , a nominal party in order that he may be kept advised of the progress of the proceedings and be bound by the judgment of the court . See In re Estate of Lynagh , 177 So . 2d 256 ( Fla . 2d DCA 1965 ); Barnett v . Barnett , 340 So . 2d 548 ( Fla . 1st DCA 1976 ). If the PR takes a partisan stance and argues the side of one or more of the claimants , he is not entitled to be paid his attorneys ' fees for services rendered by his attorney to other parties to the proceeding . Barnett , supra .
Consider the following example : There is a dispute between beneficiaries and the PR files an action for Declaratory Judgment . If only one beneficiary takes a position in the litigation , is the PR suppose to stand by and do nothing if he believes that the beneficiary ’ s position is contrary to the decedent ’ s intent ? In Barnett , the PR was “ called to the mat ” for involving himself in similar litigation .
Consistent with the PR ’ s duty of neutrality , The PR ’ s attorney cannot represent either side of a dispute between beneficiaries contesting the distribution of an estate . See Lynagh , supra , citing In re Jessup ' s
Estate , 80 Cal . 625 , 22 P . 260 ( Cal . 1889 ); In re Thompson ' s Estate , 156 Wash . 486 , 287 P . 21 ( Wash . 1930 ). See also Fla . Bar v . McKenzie , 442 So . 2d 934 ( Fla . 1983 ) ( respondent accepted a $ 1,000 retainer from an heir to an estate and accepted appointment as attorney for the PR of the same estate . This dual representation constitutes a violation of Disciplinary Rule 5-105 ( A )).
Does the same duty of neutrality apply to a will contest ? In a will contest , a PR has a duty to defend the will . See Estate of Blankenship , 136 So . 2d 21 ( Fla . 2d DCA 1961 ); Mims v . Miller , 513 So . 2d 1120 ( Fla . 2d DCA 1987 ). Can the PR aggressively defend the will and charge his attorney ’ s fees against the estate ? Maybe . It may turn on whether one or more of the beneficiaries are standing in the shoes of the PR and defending his position . Can the PR ’ s attorney represent a beneficiary who is defending the PR ’ s position in the litigation ? If so , who pays his attorney ’ s fees ? These are questions best answered by the judge .
PBCBA BAR BULLETIN 21