Skip to main content

Isn't there a conflict of interest with Heggstad petitions - the attorney stands to gain if it fails and goes into full probate?

Concord, CA |

The fees for probate is much higher and a % of estate. Correct me if I misunderstood.

+ Read More

Attorney answers 5

Posted

You are correct that there is an inherent conflict but that's the case with many things that lawyers, and other professionals, do. Hopefully it's an honest attorney involved in which case this shouldn't be a concern. Good luck.

Posted

Even if there were a conflict, which I do not believe there is, the attorney is filing the petition. Your argument would make more sense if an attorney refused to file Heggstad petitions, in order to make more money handling the probate. When you place the matter in the hands of the judge, it removes any potential conflict.

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.

Posted

I don't practice in CA, but (as I understand it) the Heggstad petition is a way for individuals who established living trusts to avoid the consequences of their own folly in failing to fund the trust. Look at it this way: everywhere else there's no question but that full-fledged probate is in the cards, at least you in CA have a shot at avoiding the full monty...

This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first. Here's how you can hire me! #1 Call: 1-888-463-2843 #2 Email: david@davidcarrierlaw.com #3 See me on TV! www.woodtv.com - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) www.woodradio.com - go to the podcast section.

Posted

In the most general sense, yes an attorney has a financial incentive to do a probate instead of a Heggstad. However, an attorney has an obligation to honestly advise a client. Failure to do so may be called malpractice, depending on how egregious the situation is. In my experience, sitting down with the client and honestly discussing the case facts and why those facts do or don't fit with certain case law resolves most, if not all, suspicions. However, it takes a long time to go through all of the details, and attorneys are famous for being incredibly busy, and thus letting client communications fall by the wayside. However, if one suspects an attorney of acting improperly, one can always go get a second opinion.

If you think about it, that kind of conflict exists in virtually every case: an attorney could, theoretically, screw something up so as to generate additional work and thus "churn" hours in order to generate higher fees. I have more than once suspected some attorneys of churning. Large firms have sometimes had a reputation for inventivizing this because attorneys have hours requirements, and are frequently rewarding their "top billers." This is NOT to say that this is even a common practice, but rumors have certainly circulated from time to time.

The foregoing does not constitute legal advice and does not form an attorney-client relationship. This information is general in nature and is intended for the public as a whole. Also, this message is not privileged, is not confidential, and you should not include any personally-identifiable information that you would like kept private on the message board. Any person may contact my office directly, but doing so only makes one a potential client, not an actual client. I may or may not agree to represent you after learning more details about your specific case.

James P. Frederick

James P. Frederick

Posted

Good honest answer!

Posted

You have oversimplified the matter.

The executor owes a duty of loyalty to the estate, and the attorney representing the executor must advise the client on prudent administration that conforms to the decedent's intent -- even if it means the attorney could make less from the estate.

Also, whether an attorney can earn more with any given property being treated as in the estate or in the trust depends on the facts and circumstances. While the amount the attorney can make from the estate is based on a percentage, the amount is typically limited to the relevant percentage and the fees must be approved by the court. On the other hand, the amount that can be billed to the trust for filing the petition to collect any assets that should be treated as trust assets is typically unlimited, and can be based on the hourly rate charged by the attorney (rather than a % of the value of the property).

Any answer or other information posted above is general in nature and is not intended, nor should it be construed, as legal advice. This posting does not create an attorney-client relationship between you and the posting attorney, and you are urged to engage a qualified attorney who is licensed to practice in the relevant jurisdiction.

Uzzell S Branson IV

Uzzell S Branson IV

Posted

Very true. All of us who have done enough probates have taken a bath on the fees at least once...

Molly Cristin Hansen

Molly Cristin Hansen

Posted

Wouldn't it be nice if it was only once!

James P. Frederick

James P. Frederick

Posted

Excellent point about the trust fees. People always assume trust administration is automatically cheaper.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer