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Do we have to use an attorney specified in a will?
February 13, 2012 9:12 PM   Subscribe

Do my sister and I have to use the lawyer specified in my dad's will to handle his estate? More inside...

My dad died with what will be an insolvent estate. We have found his will and it states that he "desires and directs" that the lawyer who drafted the will handle probate, etc. The lawyer mentioned is expensive and my dad's estate will probably not have enough money to pay for legal assistance. Do we have to use that attorney? It seems like a tricky tactic to insure that the lawyer will end up handling the estate when that time comes...

On a side note, do we have to open his estate at all? There will be nothing left and we are both thinking that if this is just a matter of bogging ourselves down with paperwork and frustration then it's not worth it. He had only a few debts, but he also was sole shareholder in his corporation that was for all purposes a one-man-show. There's only a few thousand in cash and he did receive Medicaid.
posted by anonymous to Law & Government (8 answers total) 1 user marked this as a favorite
 
See if you can find resources in your state on the rules for the probate process. If your father's estate is that minimal of value, it may not need to go through probate court or anything lawyer-rific at all. My understanding is that it typically needs to be worth a good amount for a court/lawyer to become involved. When that happens, it costs tons and months of time to get through.

Also, does the lawyer mentioned know he was named in the will to be the executioner of sorts? He may know... and may offer to give free advise concerning state of the will and estate. The expenses for this are usually always from the estate first. There may only be distribution to do, especially if the estate is really not worth anything.
posted by Bodrik at 9:43 PM on February 13, 2012


I am not a lawyer, but I used to work in a probate lawyer's office. TINLA. Please follow the rules that apply to your own area.

You will likely need to go through probate no matter what. However, you shouldn't necessarily be required to use a lawyer. In our area, we see legal notices published all the time with a family member acting as the representative of the deceased. Probate doesn't need to be complicated; it may take a year or so just to wait out various required periods, but that shouldn't involve much work if things are as clear-cut as you've suggested. Your local probate office should have information on what you'll need. They're usually pretty decent people.
posted by Madamina at 10:15 PM on February 13, 2012


I'm no lawyer, this certainly isn't legal advice, and you should check with a lawyer of your own, but: wouldn't the estate's executor (whether this particular lawyer your father chose or you or someone else) be paid by your father's estate? I mean, the executor would not be working for you, they would be working FOR THE ESTATE, so at worst that "few thousand" your father left might be spent on paying the executor to take care of the paperwork involved in probate and closing down your father's corporation.

Another thing to think about and ask your own lawyer: it's one thing if your father's lawyer decides on his own not to serve as executor, but wouldn't it be considered CONTESTING your father's will (and thereby possibly expensive to you!) to REFUSE your father's choice?

(And for what it's worth, at least here in Virginia, ANYBODY can be named to serve as executor, whether they're a lawyer or a family member or just a friend; and whoever it is, is paid by the estate.)
posted by easily confused at 3:25 AM on February 14, 2012


The simple answer, in most states: no. The executor is the client, and the client has the right to choose his or her lawyer. That language is typically regarded as "precatory" - an expression of a wish without any means of enforcing it.

When you consult with a lawyer, you may find that the recommendation is to do nothing, or that there are expedited small-estate procedures available in the state where he lived.
posted by megatherium at 4:36 AM on February 14, 2012 [1 favorite]


in New York State, the amount an attorney can be paid to do probate for an estate is legally set by the amount of money in the estate. I don't remember the exact numbers, but it's something like 5% of the first $100,000, 4% of the next $100,000, and so forth. So you don't have to worry about the attorney being "expensive" - no matter where you go, the attorney would always charge the same.
posted by Lucinda at 5:30 AM on February 14, 2012


The first rule of LegalFilter is that there is no LegalFilter and nobody who knows anything will ever give you legal advice here. The SECOND rule of LegalFilter is that you really need to post your location so that we can direct you to someone locally who can provide you with the answers that you need. Also, do not talk about LegalFilter.

As others have mentioned, this isn't a uniform issue and you'll really need to talk to someone in your state to know what the rule is for your situation. (But I'll chime in to say that, like NY, the compensation scheme in Texas is standardized so as to prevent the costly administration of small estates.)
posted by jph at 6:49 AM on February 14, 2012 [1 favorite]


in New York State, the amount an attorney can be paid to do probate for an estate is legally set by the amount of money in the estate. I don't remember the exact numbers, but it's something like 5% of the first $100,000, 4% of the next $100,000, and so forth. So you don't have to worry about the attorney being "expensive" - no matter where you go, the attorney would always charge the same.

This is incorrect. In NY, the amount an executor can be paid is set forth in this manner, but an attorney for the estate is entitled to "reasonable compensation" as determined by the Surrogate Court judge.
posted by melissasaurus at 7:55 AM on February 14, 2012


IANAL -- but I have an estate lawyer in Colorado. For Colorado, I believe this answer is no. Am happy to pass on contact info for lawyer via memail.
posted by countrymod at 3:07 PM on February 14, 2012


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