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Is it legal, or ethical, for an executor of an estate to hire himself as probate attorney for the estate?

San Jose, CA |
Filed under: Professional ethics

My step-father named his brother-in-law (of his first wife) as executor, who then hired himself and his partner as probate attorneys of the estate. I would consider this to be a conflict of interest and double dipping, but I'm not an attorney. I represent my mother, who is a beneficiary, as conservator of her estate. My step-father died 32 months ago, his house (the primary asset) was sold the beginning of this year, and both attorneys are dragging their heels and are uncommunicative about the status of the estate. Your opinion would be appreciated.

Attorney Answers 3


There may be additional facts which change this analysis.
An executor who is also an attorney who hires his firm cannot receive fees both as executor and as attorney. Communications is a problem for many attorneys, but probate does not move as fast as often would be hoped. Make your requests for updates in writing. If it gets out of hand, consult an attorney.
This is analysis and not legal advice.

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 terms and conditions item 9, incorporated as if it was reprinted here.

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Your concern is understandable and even logical; however, in Florida an attorney is permitted to be both the personal representative and the attorney for the estate and to be paid separately for each service. There is even a statute specifically on point - Florida Statute 733.617 (6) - that deals with compensation of the personal representative. Specifically, it states "if the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered." It may be helpful for you to know that the statutes also define what are "presumptively reasonable" fees for both the personal representative (F.S. 733.617) and the attorney for the personal representative (F.S. 733.6171). The statutes set forth formulas you can use as a guideline. Hopefully this helps to resolve your concerns.

The posting of an answer in response to a question does not create an attorney-client relationship and should not be considered legal advice.

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The California Rules of Court state:

Rule 7.706. Compensation when personal representative is an attorney
(a) Personal representative's compensation only
Notwithstanding the provisions of the decedent's will, a personal representative who is an attorney may receive the personal representative's compensation but may not receive compensation for legal services as the attorney for the personal representative unless the court approves the right to compensation for legal services in advance and finds the arrangement is to the advantage, benefit, and best interest of the decedent's estate.

(b) Agreement not to participate in compensation
A law firm of which the personal representative is a partner or shareholder may request compensation for legal services in addition to the personal representative's compensation if a written agreement not to participate in each other's compensation, signed by the personal representative and by authorized representatives of the law firm, has been filed in the estate proceeding.

So the first question is whether an agreement has been filed in this matter. If it hasn't, I wouldn't say anything at this point (the lawyer might not know the rule).

I suggest you file a "Request for Special Notice" in this matter, which you can find here:

File it with the Probate Court and send a copy to the executor and also his law firm. The executor is then required to send you more information than you would otherwise need to be sent.

If the pro bare is in Santa Clara County, you can also go online here:

and find out exactly what has been filed with the Court.

In addition, you can always file a Petition to compel an accounting and status report so that the Court gets a "heads up" that the case isn't moving along. That way, you'll get the judge to require the executor to report on the status of the case and explain why the probate has not been closed yet.

My office is in Palo Alto if you need assistance.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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