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Written by on Nov 23, 2010| Posted in: Estate Litigation


Pursuant to Florida Statute 733.301, if a person dies with a valid Last Will and Testament in place, the personal representative is usually nominated by the document itself.  In the event the person nominated to be the personal representative of the estate is not able to perform their duties as personal representative, the well-drafted Will would name a successor personal representative.  If that is not the case, then Florida Statute 733.301 provides for the personal representative being selected by a majority in interest of the persons entitled to the estate.  Also, in some instances, the Court may select a person of interest who is best qualified to serve as the personal representative of the estate pursuant to Florida Statute 733.301.

 If a person dies intestate (without a last will and testament) or without a valid Will in place, then the surviving spouse would be the personal representative of the estate, and if there is no surviving spouse, the person selected by a majority of interest of the heirs would be nominated as the personal representative pursuant to Florida Statute 733.301. 

When the personal representative of the estate retains an attorney to represent them to probate the estate, a retainer agreement is customarily executed by the personal representative that outlines the agreed upon terms of the hiring of the attorney.  This retainer agreement will state that the personal representative is the client, and the attorney or the attorney’s firm agrees to represent the personal representative in order to probate the estate and usually sets forth information like how much the lawyer will charge to probate the estate.

Pursuant to the retainer agreement executed by the personal representative, the attorney will render services for the benefit of the personal representative who in turns represents the estate.  Usually, none of the beneficiaries of the estate execute the retainer agreement.  In other words, the beneficiaries of the estate do not occupy an attorney-client relationship with the attorney for the probate estate, and it is the personal representative who has the attorney-client relationship with the attorney who is probating the estate. 

 Although counsel for the personal representative of an estate owes a fiduciary duty to the personal representative, this does not mean that the attorney and the beneficiaries occupy an attorney-client relationship.  Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA 1990).  In Florida, the personal representative is the client rather than the estate or the beneficiaries.  Rule 4-1.7, Rules Regulating the Florida Bar (comment)Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA  1990).

It follows that counsel does not generate a conflict of interest in representing the personal representative in a matter simply because one or more of the beneficiaries takes a position adverse to that of the personal representative.  Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA  1990).  A contrary position would raise havoc with the orderly administration of decedents’ estates, not to mention the additional attorney’s fees that would be generated.  Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA  1990).

 Although, it is imperative that the testator or testatrix retain competent counsel to draft a Last Will and Testament to insure the validity of the Will, it may also be just a important to educate the beneficiaries after death that the lawyer represents the executor of the estate and not the beneficiaries who may desire to hire their own attorneys.

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