Follow These New Rules to Retain Estate Lawyers

Jerry was named in his father’s will as the estate executor.

The will specified Jerry was to hire the father’s lawyer, Frank, to probate the will. But Jerry had a problem. He lived in North Bay and Frank, the father’s will lawyer, practiced in Toronto.

Was Jerry bound by the father’s wish in his will?

The answer is no. Estate trustees do not have to hire will drafting lawyers for estate services.

Ontario Rules of Professional Conduct – Testamentary Instruments

The Law Society of Upper Canada’s New Rules of Professional Conduct, effective October 1, 2014 dictate what Frank must do.

Rule 3.4-37 creates a new requirement for drafting lawyers. If a will contains a clause directing that the lawyer who drafted the will be retained to provide services in the administration of the client’s estate, the lawyer should, before accepting that retainer, provide the trustees with advice, in writing, that the clause is a non-binding direction and the trustees can decide to retain other counsel.

Frank drafted the father’s will. Therefore, he must confirm the clause stating Frank is to be retained is not legally binding. Jerry could still hire Frank if he wishes. Frank would then have Jerry sign an acknowledgement.

Ontario estate trustees face many challenging tasks. Hiring the right estate lawyer is one of them. The Law Society requires estate lawyers to follow these new rules of conduct. Executors are assured freedom to choose any lawyer to help with an estate.

Executors Must Sign Off

Frank must obtain, from Jerry, a written acknowledgement from stating Jerry:

  • was not required to hire Frank (the drafting lawyer) or Frank’s firm because of a term in the father’s will;
  • was not prohibited from hiring any other law firm of his choosing; and
  • could choose any lawyer or firm to advise him.

If Jerry hires Frank, Frank must have evidence of Jerry’s informed consent.

What is informed consent? That depends on the client and the circumstances.

Jerry should also sign a retainer agreement specifying Frank’s legal services and fees.

Estate lawyers can forget they are not retained by the estate. The estate is not a legal entity and cannot hire lawyers. This confusion causes frequent problems for both lawyers and estate trustees.

Estate trustees are liable for payment of their lawyers’ fees. The new rule identifies duties for the benefit of both practitioners and the public.

Jerry’s father had the right to suggest Frank help Jerry. But his father could not insist Jerry do this. Executors may benefit from hiring the lawyer already familiar with assets, family relationships, business and tax matters.

Finding the Right Estate Lawyer

This requires doing some homework. New executors will often be frazzled as they start their tasks. Experienced estate lawyers can help you avoid problems from the start.

Common ways to find a good estate lawyer referral include:

  • friends and neighbours – but do not assume your needs are identical
  • professional referrals – your financial advisors you should have a list of lawyers
  • local law societies can refer prominent estate lawyers or Certified Specialists – Law Society of Upper Canada
  • other lawyers you know for names of lawyers with estate administration experience
  • local estate seminars or events allow you to personally meet and assess your comfort level with a lawyer
  • internet searches – ensure you are looking at local Canadian lawyers’ websites

Avoid these Mistakes Hiring Estate Lawyers

Don’t choose a professional on the basis of:

  •  who has the largest yellow page ad
  •  the lawyer with the lowest fee quote
  •  experienced lawyers – but with no estate experience

About Ed Olkovich

I am Toronto estate lawyer, author and editor of Carswell’s legal guide Compensation and Duties of Estate Trustees, Guardians and Attorneys. I am a Certified Specialist in Estates and Trusts law. I have handled estate disputes and probate problems since 1978. © 2014