Legal Question in Wills and Trusts in California
Role of estate attorney vs. debtor attorney
Mother died in CA. My brother is sole executor and he and I are co-beneficaries. My brother has retained an estate attorney in his role as successor trustee and also has retained an attorney in his role as a debtor to the estate as he owes the estate in excess of 200K. Recently have begun to receive large distributions(with errors). The distributions are coming from the debtor attorney not the estate attorney.
My question: Is it both ethical and legal for my brother's debt attorney to be distributing assets of the estate? I thought this was the role of the estate attorney providing professional guidance to my brother in his role as successor trustee. Can't believe the debt attorney can ethically wear
both the hat of defending my brother's debts and then turn around and distribute assets.
3 Answers from Attorneys
Re: Role of estate attorney vs. debtor attorney
He asked you to wear both hats but you must account specifically, without errors and deal with the estate in a matter that is more in favor of the estate. You see the trustee has a fiduciary duty to the beneficiaries in the estate. As a debtor he has a direct conflict with the estate. If the debt is questionable then in that case I would feel you should remove him. If he acknowledges the debt then personally, I would apply for code trusteeship at least to a limited extent applicable to this death. Especially if it is a significant asset of the estate. It is unusual to have two separate attorneys represent you but I can understand why. Personally, I would not feel very comfortable having him as the sole trustee and I would recommend that you seek the aid of an attorney who is expert in probate/estate planning who can aid you to become a cotrustee minimally is not the sole trustee of the estate to deal with all the assets including the debt from your brother to the estate. Remember, his total debt is one half of the amount he actually owes the estate since he has a one half interest in all the assets ultimately become out of the estate. That does not lessen his obligation in any manner to fully fund and pay the debt plus any interest penalties and fees applicable thereto.I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.
Re: Role of estate attorney vs. debtor attorney
There's the potential for a conflict of interest, certainly. I'd feel more comfortable if your brother's made certain disclosures to which you're entitled, like the amount/value of assets in the trust and your mother's estate at her death, and the known debts owed to and from the estate. An accounting won't be due until a year after her death, but you're entitled to the above information immediately, so request that if you haven't.
Re: Role of estate attorney vs. debtor attorney
All I care about is that you get your money. Keep track of the distributions and if you are not getting a fair shake, see an attorney.
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