Does the Attorney Represent the Estate or Personal Representative in New York?

Generally, a probate attorney in New York represents the estate, which is represented by the personal representative often called an executor or administrator. The executor or administrator has a fiduciary duty to act in the best interests of the estate and its beneficiaries. This includes properly notifying creditors, handling estate assets appropriately, distributing assets to beneficiaries according to the terms of the will or state law, and filing necessary tax returns and paying any estate taxes owed.

Distributees, who are the individuals entitled to receive property from the estate if there was no will, usually hire their own lawyers when contesting the validity of the will. They may argue that the will was improperly executed, the testator lacked testamentary capacity, or the will was procured by fraud, duress, or undue influence.

Similarly, beneficiaries named in the will may hire their own attorneys if they want to challenge certain actions of the executor or administrator. For example, if the personal representative sells an estate property for significantly less than its fair market value, beneficiaries may take legal action arguing that the personal representative breached their fiduciary duty and caused financial harm to the estate and its beneficiaries.

When a Complaint is Filed Against the Personal Representative

When a complaint is filed against the personal representative for breach of fiduciary duty, the probate attorney may or may not represent the personal representative, depending on whether the personal representative acted under the advice of the probate attorney.

If the probate attorney advised the personal representative on a particular course of action and a complaint was filed against the personal representative for breach of fiduciary duty, the probate attorney should be able to defend his proposed course of action.

If the personal representative acted against the probate attorney's advice, then the probate attorney may refuse to represent the personal representative because the probate atorney's client is the estate, and not the personal representative. In that case, the personal representative should hire his own personal attorney. If the personal representative is successful in defending against the allegations, the personal representative can request reimbursement of his attorney's fees from the estate.

The Role of the Probate Attorney

The probate attorney plays a crucial role in safeguarding the estate's interests by providing sound legal guidance to the personal representative. This includes advising the personal representative on the proper steps to take throughout the probate process, such as managing estate assets and distributing property to beneficiaries in accordance with the will or state law. The probate attorney also works to minimize the personal representative's potential legal liability by ensuring that they comply with all applicable laws and fulfill their fiduciary duties to the estate and its beneficiaries.

Since the probate attorney is acting on behalf of the estate, their fees are typically paid from estate funds. This arrangement allows the estate to benefit from the attorney's expertise and ensures that the personal representative has access to the legal support they need to effectively administer the estate.

The personal representative and the probate attorney must maintain a close working relationship to ensure that the estate is managed efficiently and in compliance with all legal requirements. This includes regularly communicating about the status of the estate, providing necessary documentation, and making decisions that are in the best interests of the estate and its beneficiaries.

However, if the personal representative fails to carry out their duties properly or engages in misconduct, such as misappropriating estate funds or failing to follow the terms of the will, they can be held personally liable for any losses incurred by the estate or beneficiaries. In such cases, the probate attorney may advise the personal representative to take corrective action or, if necessary, may withdraw from representing the personal representative to protect the interests of the estate.

Should you need legal representation regarding estate matters, you can call the Law Offices of Albert Goodwin at 212-233-1233 or send us an email at [email protected].

We represent estate clients throughout the state of New York, including all five boroughs of New York City (Manhattan, Brooklyn, Queens, The Bronx, and Staten Island), Long Island, and Upstate New York.