I petitioned the courts for Letters of Administration of my brother's estate who died intestate. The Judge said I needed to get legal advice as to how to proceed. So I contacted an attorney who had me to sign a Substitution of Attorney form. Am I still the person who will represent my brother's estate or is the attorney in charge? What exactly is his role and my role? Does he make all court appearances the judge scheduled for me, or do I still have to make them? Can this agreement be cancelled if it does not turn out to be what I wanted? I really just need direction from time to time. Thank you.
Estate Planning Attorney
The probate process in California can be extremely confusing, with many required court filings, legal forms, and an accounting process that is difficult for most people to handle without an attorney. That is why for most estates, there is an administrator/executor, who is appointed by the court or in the will to handle the estate, and an attorney for the administrator/executor to assist the administrator/executor in completing all the legally required steps, such as the legal documents and court filings, in accordance with the requirements of the law.
The division of labor between you and your attorney will depend on what you have agreed to and varies because people have different comfort levels with tasks required in probate. You and the attorney are in essence a team dividing up the probate tasks.
In general, the administrator/executor does much of the management work required in taking care of the estate assets, such as gathering all the assets together, for example physically going to get the property of the estate that is in the banks and financial institutions, disposition of personal property and belongings, safekeeping of valuables, storage or sale of the cars, maintenance of real property etc. An accountant may also be used by you to take care of estate bills, accounting records, tax filings, etc..
The attorney can help you to set up an appropriate recordkeeping/ accounting/bookkeeping system, set up the appraisal process, make sure you have all the legal documents you need to do your job, and report the outcome of each step of the probate process to the court by filing all of the required documents within the required time periods. You should get detailed information about these steps from him. The fact that you seem to have hired an attorney but still seem to have so many unanswered questions is troubling, because good communication is key to so many tasks in the probate process.
It is only after all the required steps completed that the heirs will receive distribution of the property. The court documentation required is extensive, ranging from appraisals of estate property and inventories, notices to person and government entities required by law, reports to the court, various petitions, publications of notifications to creditors, preparation of court accountings, and finally the petition for distribution, among other things. It may be possible for you to do these documents on your own, but it would probably require an enormous commitment of your time to figure out all the proper steps and forms.
You should know that even many lawyers who do not practice in this area of the law, find that the research required and the delays caused by mistakes would be extremely costly, and opt to hire experienced probate lawyers to advise them, and to prepare all the legal documents and court filings required in the format the court will accept.
Since the administrator/executor can be subject to liability to the heirs if their legal duties are not carried out property, it is highly recommended that a person who has been appointed to perform these duties obtain competent legal advice.
The substitution of attorney was the formal notification to the court that you have hired an attorney, and to let the court know that this attorney is now representing you. You needed to sign the substitution because you began the case as your own attorney, and are now substituting in someone else to be the attorney.
The attorney can usually make all future court appearances for you, but you can still attend if you wish. You can change attorneys, but be aware that changing attorneys often may cause additional delays or attorneys fees, because any new attorney coming in would have to "catch up" on everything that has gone on before he or she was hired. If your attorney is not answering all your questions, you can always get a second opinion, but a good probate lawyer can be a great asset in the court probate process
The comments contained herein are not be be construed as legal advice, and no action should be taken on your case without having a full, in person consultation with a qualified attorney. The general information contained herein cannot be relied upon in making any legal decision or taking any action.
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Divorce / Separation Lawyer
This questions needs to be posted in the probate section. I have changed the practice area accordingly.
Michael is in San Jose, California and can be reached at 408-295-4232 or at email@example.com. Consultation fees, rates and retainers vary based on need and ability to pay.
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The substitution of attorneys substituted your new attorney for yourself as your own attorney. You really need to ask the lawyer you hired all these (and additional) questions.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
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