Legal Question in Wills and Trusts in Massachusetts

Re: Fiduciary responsibility

Unless he is the Executor, then the Executor of the Estate can fire him.

Moreover, if he is not the Executor named in the deceased's will or estate, the named executor can use whomever they want as attorney for her estate.

The decision is the Executor's to make.

I suggest you contact an attorney familiar with probate and breaches of fiduciary duty to determine what further action can be taken.

Re: Fiduciary responsibility

It sounds like you and your famiy have had a really bad experience with this attorney. Since you objected to his appointment in the new estate, you can ask the court to appoint you or some other person to be the administrator of that estate, assuming there is no will. If there is a will, the court will usually appoint the named executor in the will unless you can show that he is unsuitable. This should be done fairly soon after you have filed your objection.

As for the first estate, if this attorney is the executor, you could also ask that he be removed. However, if it is almost finished, you would want to weigh the costs and benefits of such a move. If he is not the executor but an attorney working for the estate, you can certainly request that the executor hire new counsel.

I suggest you speak with an attorney about these issues. You and your family can take steps, but you should have some guidance. Please let me know if I can help you in any way.

Good luck.

Re: Fiduciary responsibility

I am truly sorry to hear about your situation. As I understand it, many persons in your family (including the person who died having made a will, known as the decedent) had urged the decedent's lawyer to make arrangements for a dying beneficiary of the estate to receive their share early. If this was the decedent's request, then the estate--but nobody else--has a right to bring a malpractice claim against that attorney, as an attorney is not legally responsible to "non-clients". In this instance, the attorney represents the estate, and obviously he will not permit the estate to sue him. Therefore, the heirs of the estate need to file a motion with the Probate Court to appoint a special administrator to investigate a possible malpractice claim against this attorney. Courts are generally inclined to grant such motions if you can show that there is some merit to the claim of malpractice.

If a special administrator is appointed, he/she could do one of two things: (a) decide not to do anything; (b) take action against the attorney; or (c) assign to the other heirs the estate's right to bring a malpractice action against the attorney. The third option is more particularly described on my blog at www.blog.lawfang.com. Please contact me if you wish to discuss this issue in greater detail.