Skip to main content

Can My Probate Attorney Quit Without Providing 30-Days Notice?

Orange, CA |

I hired a friend-personal injury attorney at a reduced rate. I am executor and sole beneficiary, assets consist of 1 home/1 car, will not contested, so this should be an easy probate. However, there have been many costly setbacks and I’ve had many problems with my attorney. An article stated that emails are not the best form of communication w/attorney, so put my requests in writing and sent it by certified mail. My attorney received my request today and I guess he didn’t like that I made formal requests. He stated in a phone text that he is going to send me a substitution of attorney and I can handle the rest of the probate myself. Is he required to give more notice until I find another attorney? Petition the court to resign and continue to represent me until I find an attorney?

+ Read More

Attorney answers 5

Posted

This sounds familiar . . . perhaps the same poster. Regardless, the rules of professional conduct require an attorney not abandon a client. But if they are not a specialist in estate planning and probate law, they are probably quite frustrated with the difference in procedure relative to, for example, p.i. law. Many lawyers of other specialty areas think that probate is a bunch of judicial council forms and not very specialized. So it appears, from here, that it dawned on him it probably was not an engagement he was equipped to undertake. Now he is trying to get out quietly.
He technically is still your lawyer until you either sign the substitution or have another lawyer step in, or he files a motion to be discharged - and succeeds (not always a given). But instead of thinking of it in terms of what punishes him the most, it is generally best to think of it in terms of what benefits you the most. I would suggest you find a new lawyer and have them negotiate a fee division based on his obvious lack of interest in the case. He may simply want his costs back (which would be appropriate, unless he has caused further damage to you). Given the firmness in the real estate market, his delay probably did not cost you - in fact, you may have made money. So your best course would be to trot the package over to a specialist in estate planning/probate and have them look at it and advise you.

This is legal information only and not meant to provide legal advice. Many issues that seem straightforward at first are often complicated by facts not revealed in a hypothetical posed by a member of the public. You should always consult directly with your attorney in order to ensure the issue is thoroughly discussed and that the proper course of action is taken.

Kelly Scott Davis

Kelly Scott Davis

Posted

Very well stated.

Asker

Posted

Thank you for responding so quickly. Yes, I am the same poster from this morning. Since I was having so many problems with my attorney, I sent my him two certified letters; one requesting my original letters of testamentary and the other outlining a number of requests such as to be copied on all filings, receive weekly updates, respond in a timely manner, etc. The letter was actually written by a probate attorney and I inserted what was applicable to my situation. Point being, the letter was well-written and free of emotional clutter. I believe he read my letters, did not like the formality of it all or that I was taking back control. So in an emotional and probably pissed-off moment, he pulled out his cell phone and text that he is sending a substitution to attorney and I can handle the probate on my own. This is a bad time to change attorney as I am at the end of escrow and he is suppose to be filing a motion to sell my home. I do agree that I need an expert, but I would like my current attorney to remain on board while I shop around for one. Is there any way to prolog his withdrawal a few more weeks? Must I sign the substitution right away? I live in Nevada and the probated home is in California.

Posted

I believe that this matter hs been asked already. What good what it would do if your attorney can't handle the matter correctly. You can go out now today and hire another attorney if you want and then that new attorney would provide your old one with a notice that he is no longer the attorney of record. You need to hire an experienced probate attorney. My office can help.

Asker

Posted

Thank you for responding. I sent my attorney two certified letters; one requesting my original letters of testamentary and the other outlining a number of requests such as to be copied on all filings, receive weekly updates, respond in a timely manner, etc. The letter was actually written by a probate attorney and I inserted what was applicable to my situation. Point being, the letter was well-written and free of emotional clutter. I believe he read my letters, did not like the formality of it all or that I was taking back control. So in an emotional and probably pissed-off moment, he pulled out his cell phone and text that he is sending a substitution to attorney and I can handle the probate on my own. This is a bad time to change attorney as I am at the end of escrow and he is suppose to be filing a motion to sell my home. I do agree that I need an expert, but I was hoping to keep my current attorney to while I shop around for one. Is there any way to prolog his withdrawal a few more weeks? Must I sign the substitution right away? I live in Nevada and the probated home is in Orange California. If you’re interested in my case, can we talk tomorrow?

Gregory Paul Benton

Gregory Paul Benton

Posted

No. don't prolong it and I suggest that you sub in an attorney immediately and it can still be handled in a timely manner. _____

Posted

This isnt litigation and I believe you previously stated you were the sole beneficiary. He can resign and you can do this alone but I would recommend you hire a probate attorney. As you see, you get what you pay for. Have a reputable attorney represent you. Thomas Hankin on Avvo seems like he is knowledgeable. I believe he is in Newport Beach.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

Charles Adam Shultz

Charles Adam Shultz

Posted

Excuse me Theodore Hankin

Posted

I don't practice in California, but I know that in some jurisdictions under the Court Rules once an attorney has made an appearance in a probate they can not withdraw without the court's premission which won't be granted unless there is a substitute attorney or an extraordinary circumstance. That requires notice and a hearing.

Charles Adam Shultz

Charles Adam Shultz

Posted

Mr. Davis is correct that is why he is sending the substitution of attorney. Based on the relationship, my personal opinion is you should sign the substitution and not make him file a petition to be relieved as counsel. Because you would not be prejudiced by his withdrawal the court wont force him to stay as your counsel. Note, if he has taken any fee from you for his services, demand he return it. Not appropriate in a probate. If he did and wont return it, then make him file the petition to be relieved as counsel and let the judge know your issue is that he took money from you to settle the estate and has failed and wont return the money. The judge may order him to do so.

Posted

The courts will work with you. I know you are probably overwhelmed, but he really is doing you a favor. You should have an experienced probate attorney assist you and you should have no problem finding one who can help you. Do you have a court hearing set? What is the last thing done in the probate? Generally unless there have been court dates that have been missed, you will be fine. Hang in there.