A Probate Attorney Represents the Personal Representative. But How Does That Work?

In a prior blog post, I explained that a probate attorney who represents the estate generally represents the Personal Representative in his or her fiduciary capacity and does not provide legal advice to the estate beneficiaries. But how exactly does a probate attorney represent the Personal Representative? Are there boundaries regarding the scope of representation?

To help answer these questions, here are three hypothetical examples related to how a Personal Representative handles money:

• Hypothetical #1: Paul is the Personal Representative of his mother’s estate. Before his mother died, Paul personally paid for several months of his mother’s assisted living care because his mother was too sick to pay the bills. Now that her estate is being probated, Paul would like to be reimbursed for these expenditures. Is it okay for the attorney representing Paul as the Personal Representative to also represent Paul as he seeks reimbursement for expenses incurred before his mother’s death?

Answer: No. Paul’s claim for reimbursement relates to expenses he personally incurred before his mother died. This means that Paul is a creditor of his mother’s estate. The probate attorney’s representation of Paul in his claim for reimbursement would likely be a conflict of interest that would violate the Rules of Professional Conduct 1.7. The probate attorney does not represent Paul personally; the attorney only represents Paul in his fiduciary capacity. Paul needs to retain a new lawyer to assist him in filing a creditor claim against the estate.

• Hypothetical #2: After Paul’s mother died, Paul personally paid for her funeral and burial expenses. He would like to be reimbursed. Is it okay for the probate attorney to assist Paul?

Answer: Yes. Since these expenses were incurred after his mother’s death, a probate attorney can generally assist the Personal Representative in reimbursing himself for funeral and burial expenses. Payment for these post-death expenses is a standard part of probate administration per RCW 11.76.110(1).

• Hypothetical #3: As the probate proceeds, the probate attorney discovered that Paul improperly withdrew several thousand dollars from the estate’s bank account to pay his country club dues. The attorney asks Paul to reimburse the estate account, but Paul refuses. Can the attorney continue representing Paul as the estate’s Personal Representative?

Answer: Probably not. An attorney is an officer of the court. As such, the probate attorney generally cannot continue representing a Personal Representative if he knowingly violates his fiduciary duties. Since the attorney owes a duty of confidentiality to Paul pursuant to Rule of Professional Conduct 1.6, the attorney’s best course of action may be to withdraw from representation.

As these hypothetical examples illustrate, the probate attorney represents the Personal Representative in his or her fiduciary capacity in administering the estate. The probate attorney does not represent the Personal Representative individually. Additionally, it is problematic for the probate attorney to continue representing the Personal Representative if the Personal Representative is not complying with his or her fiduciary responsibilities.