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The attorney who drafted my father's will in FL is also named as an executor in the will. Conflict of interest?

New York, NY |

The attorney who drafted my father's will in FL is also named as the executor in the will.

We (the family) don't know if he self-appointed or if he "guided" my easily-influenced father in the decision to name him as executor.

My father has an estate of around 3 million, with assets in the US and Europe. I've read in legal texts that sometimes estates can be deemed "complex", and as such, the executor can petition the courts for even a larger fee.

To a lay person, this sounds like a HUGE conflict of interest, but I'm curious to hear the opinions of other lawyers:

Is it a conflict of interest to act as the drafting attorney of a will as well as the executor?

Thank you.

Attorney Answers 3

Posted

In Michigan, this would not be a problem. The attorney would not be allowed to draft documents, (or have anyone in his/her firm do so, if he is to receive distributions from the estate. But serving as the personal representative is allowed, even if this means that the lawyer would be entitled to compensation. I believe the theory is...SOMEONE needs to do the job. The lawyer is simply one possible person to handle it. I would think that it is probably still a best practice to have someone else draft the forms to avoid even an appearance of impropriety.

Whether or not Florida law differs, I cannot say. It would not surprise me that other states have much more restriction on this kind of thing.

You can always petition the court to have the lawyer removed as executor and have someone else appointed. Under those circumstances, the lawyer might well agree to step down.

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

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Posted

Mr. Frederick offers sound advice. There is no conflict of interest here, but if you object to the attorney serving, then you can retain an estate litigation attorney to petition the court for his removal.

Hope this helps.

Please remember to designate a best answer to your question.

Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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Posted

Not sure about Florida Law, but in NY, the client needs to sign an affidavit (Putnam affidavit) stating that they know that the attorney will be receiving a separate fee for acting as an executor. Without such an affidavit, the attorney's fees are reduced by half. I would consult an attorney in the state(s) where the will is probated.

Sincerely,

Roman Aminov, Esq.

Law Offices of Roman Aminov

147-17 Union Turnpike | Flushing, New York 11367
P: 347.766.2685 | F: 347.474.7344
Roman@AminovLaw.com | www.AminovLaw.com

This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.

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