Sunday, August 14, 2016

Wills and Probate - As the Client, Your Choice of Attorney is ALWAYS Up to You and Your Executor!

I recently met with some new clients (a married couple aged 60-70) to review their estate plan.  They had met with another attorney who prepared wills for them within the past year.  As we went over their estate planning goals and their previous wills, the first thing we discovered is that the wills they had prepared did not provide the bequest and specific gift terms they were looking for, and which they thought had been written into their wills.

The second thing that stood out was a paragraph like this that the clients did not realize had been written into their wills (I'm paraphrasing):

"Joe and Jane Testators have retained Larry Lawyer to prepare their wills, and they want Ed Executor and their family to continue to retain Larry Lawyer to handle probate of their estates."

Now don't get me wrong, obviously when I help clients with estate planning, I certainly hope to be able to continue to help their families with probate and other legal issues that arise when the clients pass away.  But that decision is entirely up to the clients.  (So long as your chosen attorney chooses to accept you as a client in turn). In the estate context, when the original client herself passes away, that means the choice of attorney is up to her executor.

Generally speaking, it would seem to make sense that the executor continue to retain the deceased client's lawyer for probate and related matters, because that lawyer is most familiar with the client's estate plan.  But that may not always be the case.  And in any event, it would take a lot of gall for any lawyer to pressure the executor to hire him, on the basis that that's what the deceased client wanted, let alone to actually write that into the client's will!! Needless to say, it is not enforceable.  In fact, I'd love to see the lawyer in that situation "double down" and try to enforce the provision in probate court. Any guesses how a probate judge is going to rule on that one?

Nate Hinch is an attorney and partner at the law firm of Mueller, Reece & Hinch, LLC.  He has offices at 404 N. Hershey Road, Suite C, Bloomington, IL 61704, and 809 Detweiller Drive, Peoria, IL 61615, and can be reached by phone at (309) 827-4055 and email at

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