by Bradley Streeter

Created on: December 05, 2008   Last Updated: December 12, 2008

Preparing for and dealing with death can be very trying, and one can only hope that the persons involved are competent and ethical. While many disputes during these times are mere misunderstandings fueled by emotion, some may be the result of improper behavior. When confronted with such a situation, it is important to remember the roles and duties of those involved in the estate planning and probate process.

Attorneys and executors have varying levels of fiduciary and general obligations to the deceased and to beneficiaries. Although not meant to take the place of the legal advice of an attorney qualified to practice law in your state, the following is an introduction to these duties, as well as ethics and malpractice in estate planning and probate litigation.

To determine the level of an attorney's professional obligation to a party, one must identify the attorney's client. In the case of estate planning, the client is the testator (the person leaving a will). In the case of probate litigation, attorneys may represent the executor or a beneficiary, depending on which party hired the attorney. Among the duties owed to clients are competence, diligence, and confidentiality.

Generally, only clients may sue for malpractice because they are in privity (contracting with) with the attorney. This presents a problem in the context of a faulty will, in that the attorney's negligence isn't usually discovered until the client is deceased. Fortunately, many states allow survivors to sue the testator's lawyer in some circumstances, since survivors are intended beneficiaries of the attorney-client contract.

Although the extent of a beneficiary's right to sue the attorney varies, most states allow only beneficiaries mentioned in the will to sue. For example, the Michigan Court of Appeals in Ginther v Zimmerman (195 Mich App 647) held that where the intent of a testator as expressed in the will was not frustrated, the lawyer owed no duty to an unnamed person.

During probate litigation, the attorney's main obligation is to the client. When the executor hires an attorney to assist with the estate, the attorney represents the executor, not the estate. Beneficiaries cannot expect the executor's attorney to look after their interests.

This does not leave beneficiaries without hope. Executors, or personal representatives, have fiduciary duties to beneficiaries. Put simply, the executor's obligation is to ensure that the estate is handled efficiently and that beneficiaries receive their

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