Do Estate Disputes Require Estate Lawyers?
Estate disputes are common events. These disputes range from seating arrangements at a funeral home to court cases contesting a will. Are you an executor or, in Ontario, an estate trustee? You must hire lawyers to perform legal work. If you do, are you, as executor, liable personally for their legal fees? Here is what you need to know.
An estate is not a legal entity. Thus an estate cannot hire lawyers. Only you, as executor, can hire a lawyer. You become the lawyer’s client, not the estate. Lawyers who do not regularly handle estate matters may not know this.
As a result of this distinction, the courts have stated:
“It follows that the estate trustee, and not the estate, is personally liable to the estate solicitor. Such liability exists whether or not the estate trustee is entitled to an indemnity – or to be reimbursed – from the estate (i.e., from its assets) for the amounts owing to the solicitor.”
As an estate executor, you are entitled to an indemnity or reimbursement for your expenses.
In the 1897 decision in Re Jones; Christmas v. Jones, the court explained the executor’s right to an indemnity as follows:
A man who fulfils the difficult duties of an administrator, executor or trustee is, in common sense and common justice, entitled to be recouped to the very last penny everything that he has expended properly — that is to say, without impropriety — in his character of administrator, executor or trustee.
Executors often make mistakes trying to save the estate money.
Do not try to do legal work by yourself. If you get a letter from a lawyer, hire a lawyer to reply. What can happen if you do not use a lawyer? You could be prejudicing the estate or waiving the beneficiaries’ rights.
Probating a will is legal work
You should not expect every lawyer to be able to handle a probate file. Inexperience and lack of knowledge of local legal customs can cost you. Changing lawyers after legal work begins can also be costly. Make sure you do your homework and hire the best lawyer.
What about a lawyer who is named in the will?
Must you hire the lawyer who prepared the will? You are free to choose your own lawyer. If you are the executor, the buck stops with you. Make sure you get a good lawyer.
Also, such a hiring clause or stipulation in a will is considered improper and unenforceable in many jurisdictions.
Just like in the medical field, there are legal specialists. If you are in an estate dispute, you will want to hire a lawyer with estate litigation experience. Estate contests are different that many lawsuits.
Estate lawsuits depend on the interpretation of estate statutes. You want a lawyer familiar with the estate legislation and how the courts have interpreted them.
You can learn more about your essential executor duties from my 1 hour executor boot camp. Register now and I will give you advance notice of the next Bootcamp.
Posted In: Estates On: June 4th, 2013