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?
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.
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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.
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Elder Law Attorney
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.
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