Legal Question in Wills and Trusts in Arizona

Re: Executor Powers

Dear Dr. Gessner,

If I read your question correctly, you have stated that the attorney, who prepared the Will, is named as the executor in that Will. If that is the case, there is an ethical question raised. Is it ethical for an attorney to prepare a Will for a client and be named in the document as Personal Representative (Executor). I think that it is generally improper to do so. The Probate Court must appoint the Personal Representative of the estate, the Will indicates the preference of the Testator, but does not bind the Court. Any interested party can come to the Court and seek appointment or complain that the Court should not appoint the attorney to serve.

Neither the attorney or the personal representative have any special power or authority to defend the validity of the Will. The validity of the Will, if questioned in Court, must be proven as validly made, without duress or coercion, and properly executed by a Testator with capacity to make a Will.