Although it seems elemental, the first step for any lawyer in any case is to identify the client. In a probate matter, the estate’s attorney generally represents the Personal Representative, in his or her fiduciary capacity. What does that really mean? That means that the lawyer works with the Personal Representative so long as that person is acting in the estate’s best interest. But who specifically represents the estate beneficiaries? No one, unless a beneficiary decides to obtain counsel.
Unfortunately, some beneficiaries think the estate’s lawyer represents them too. For free. As a result, they call the lawyer’s office. And call. And call again. Often, the lawyer will not return a beneficiary’s telephone calls – especially if the calls come in at a high volume. Why not? Is the lawyer lazy? Too busy to be bothered? The real answer is that the lawyer doesn’t represent the beneficiaries. When a beneficiary calls and a lawyer chooses to engage in a conversation, the lawyer must walk a careful line between providing general information about the estate (which is okay) and providing legal advice to a beneficiary (which is not okay). Another consideration at play is the attorneys’ fees. When a lawyer spends time engaging with a beneficiary, the lawyer bills her time to the estate. A lawyer’s time is considered an expense involving estate administration. In Washington, these expenses are prioritized ahead of any estate distributions to the beneficiaries. In other words, the beneficiaries may think their constant contact with the estate attorney is free, but if that beneficiary is receiving a certain percentage of the estate, the total amount left to distribute might be considerably less if the attorneys’ fees are high. So that beneficiary, and any other beneficiaries who will receive percentage distributions, will ultimately receive less money. Since, again, the lawyer represents a fiduciary and must seek to act in the estate’s best interest, often it is in the estate’s best interest if the lawyer does not communicate excessively with the beneficiaries. Otherwise, one problematic beneficiary can unfairly reduce the other beneficiaries’ distributions.
Also, unfortunately, some beneficiaries who suspect that they are being shafted by the estate choose to take matters into their own hands. Why should they pay for an attorney to represent their interests, when they can just do it themselves?! It’s just a bunch of forms, right? Any moron can do a few Google searches and file any pleading that is necessary. As you can imagine, the reality of the DIY beneficiary usually fails to match up to these lofty expectations of simplicity. Common problems include pleadings that literally make no sense to anyone but the beneficiary, pleadings that fail to cite any law or cite the law incorrectly, and pleadings that are not properly filed and served upon other parties pursuant to the court rules. These pleadings tend to be such a ridiculous mess that it takes the estate lawyer much more time to determine an appropriate response than if the beneficiary had been represented by an attorney and a coherent pleading had been filed and served. And again, who pays for the attorneys’ fees? The estate. I’ve seen many examples in which an estate beneficiary unwittingly drains the estate’s assets available for distribution due to these DIY efforts. It would have been much more financially beneficial for everyone involved, including the problematic beneficiary, if the beneficiary had paid for his or her own attorney rather than pursued a DIY remedy.
So what’s a poor confused beneficiary to do? If you are an estate beneficiary, and you are confused by what’s going on or suspect foul play, the best thing you can do is to hire your own attorney. Your attorney can explain the probate process to you, obtain information from the estate’s attorney in an efficient way and, if necessary, file reasonable and legally sound pleadings on your behalf. Ultimately, this approach will not only make the estate lawyer’s job easier – it may also save the beneficiaries a considerable sum of money at the end of the day.
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