The attorney that drafted the will is the natural person to turn to when probating it, because the attorney’s name is usually written on the cover of the will itself. But the attorney who drafted the will is not always able to represent the executor in probating the will.
If the will is not challenged, then an attorney can represent the executor and the estate. If the will is challenged, the attorney who drafted the will cannot represent the estate.
This rule makes sense for at least two reasons. First, a witness’s role is to be objective and testify, while an attorney’s role is pretty much the opposite – to zealously represent a client and be subjective to the client’s benefit. It is impossible for one person to fully meet both standards. Second, as a practical matter, the format of examinations at trial and depositions is question and answer. It is mpossible for attorneys to examine and cross-examine themselves.
We covered what happens when the estate is uncontested and when the will is challenged. But what happens when it is unclear whether the will is being challenged? The answer to that will depend on how the likelihood of a challenge. I think the mere fact that a person is disinherited is a clear indication that they will contest the will. So if someone is disinherited, presume a will contest unless the person who is disinherited says otherwise.
If the attorney who drafted the will is unable to represent the estate and you are looking for a New York estate attorney to represent the executor and possibly fight a will contest, call The Law Offices of Albert Goodwin at (212) 233-1233.