Grief can take many forms. Sometimes families fight after a loved one dies. When there is a large estate or a highly valued piece of property, that fight can make its way to the Florida probate court. In those cases, it can be hard to tell who the estate’s lawyer really represents and whether you need to hire an independent lawyer to protect your own interests.
Lawyers generally are not allowed to represent someone if doing so would create a “conflict of interest.” The Florida Rules of Professional Conduct say that lawyers must avoid representing two people whose interests are opposed to one another. This is designed to protect the confidential information clients give to their lawyers as their case goes on and allow attorneys to provide candid advice to protect a client’s best interests.
There are technicalities for your lawyer to think about in deciding whether they can represent a person or family. As a potential client, all you need to know is that if the lawyer you want to represent you has received private information from someone that may fight against you in court, there is probably a conflict of interest and that lawyer will probably refuse to take the case.
In a civil lawsuit, the attorney-client relationship is usually straightforward. But in estate planning and probate, you may have an attorney representing family members in preparing their Wills, filing probate in Florida courts after a loved one has died, or even administering the family trust as trustee. Many family members will have signed paperwork waiving conflicts of interest at the estate planning stage. Then, when a loved one dies and an estate administration case is started, the question of who is the client can become more difficult.
From a technical standpoint, an estate administration attorney represents the estate itself, not anyone in the family. In practice, this means that the personal representative or executor is generally the primary point of contact between the family and the lawyer. While other beneficiaries or family members may participate in the case and meet with the lawyers, when conflicts arise, it is the estate that has the attorney’s primary loyalty.
In most families, who the client is doesn’t become an issue. The beneficiaries to a Will or trust generally agree on the administration. Most of the time they want the probate matter closed as quickly and efficiently as possible. However, sometimes disagreements between family members or ongoing conflicts can make their way into the probate case. For example, conflicts of interest may arise when:
These personal interests can create conflicts of interest and threaten the smooth administration of your loved one’s estate.
Family members may also feel that a Will or trust was improperly created or a result of undue influence. If you are considering filing a Will challenge as an “interested person,” the firm handling the estate will not be able to help you. A lawyer cannot represent a relative in a Will challenge if they have been involved in preparing or administering that Will. You will need to find an independent lawyer to help you file your claim and defend your rights.
Sometimes, the work a lawyer does for your family has nothing to do with the courtroom. Lawyers often act as professional trustees, managing the family trust, maintaining family property, and distributing funds to beneficiaries as directed by the Trust documents. If one or more of those beneficiaries disagrees with the way that administration is done, they may be able to file a lawsuit to remove or replace the trustee.
However, as with a Will challenge, if any of the lawyers in a law firm has acted as a trustee for the family trust, no one in the firm can help the beneficiaries with any breach of fiduciary duty claims. Even if the named trustee is an individual or family member, if anyone in the law firm helped with the administration process, you will need to look elsewhere to hire a lawyer to contest the trustee’s actions.
For the most part, lawyers are the ones responsible for detecting conflicts of interests and avoiding sharing confidential estate information with anyone but the client. However, when both parties are in the same family, the conflict may not arise until part way through the administration of the family estate. In that case, you can hire your own lawyer to contest the administration and file a motion to disqualify the firm based on its access to your confidential information that was shared before conflict arose. If your motion to disqualify is granted, the estate will need to find a new lawyer before the case can continue.
When disputes arise between family members, it can be difficult to sort out who is the estate administration lawyers’ client, and whether you need a lawyer of your own. At Harrison Estate Law, P.A., our experienced estate and probate team pay close attention to avoid and correct potential conflicts of interests. We can help you consider your options if you believe a lawyer representing your family has done something unethical. We can help you protect your personal interests, or shield your loved one’s desires from a family member who has their own priorities. Contact us here or call 352-306-2374 to get help today.