Legal Question in Wills and Trusts in New York
Can I Sign the Release for an Estate But Still Sue the Probate Attorney?
As the residual beneficiary for an estate, I have recently been mailed a release form to sign in order to get the estate funds distributed to me. The executor tells me that signing the release eliminates the need for the estate to do a formal accounting.
I believe the executor has generally acted properly during the estate and I don't want to sue him. However, the probate attorney he has hired has overbilled the estate. The executor basically agrees about the overbilling but just wants to get the estate closed and would prefer that I just sign off on the release.
The language of the release only refers to releasing the executor from liability, but says nothing about releasing anybody else from liability, such as the probate attorney. Can I therefore sign the release, get the funds distributed to me, and then hire an attorney to go after the probate attorney?
4 Answers from Attorneys
Re: Can I Sign the Release for an Estate But Still Sue the Probate Attorney?
You have no standing to sue on behalf of the estate. The executor does. The time to object is at the accounting.
Re: Can I Sign the Release for an Estate But Still Sue the Probate Attorney?
YOu can, but unless the overbilling is astronomical what's the point? Remember it is not merely a point of alleging overcharges you will need to prove your case. Is the amount you will spend in litigation to recoup what you believe are overcharges going to be worth it in the end against the amount you will be expecting to pay in attorney fees?
Should you like to discuss this or any other legal matter, you can call my office to schedule an appointment for a consultation or in the alternative, I can be reached for on-phone low-cost legal consultation at 1-800-275-5336 x0233699.
Re: Can I Sign the Release for an Estate But Still Sue the Probate Attorney?
Was an accounting (formal or informal) submitted with the Release? How about a form called Waiver, Consent and Approval, which essentially is used to waive the requirement for a formal accounting, consenting to the actions of the Executor and the matters set forth in the accounting, if submitted, and approving all matters including the payment of debts and expenses, including legal fees? The Release itself is to the Executor and not the attorney, so you have not waived your right to sue, although the primary right is with the Executor to contest the bill. How was the fee determined? There are usually Court Rules that describe how much the fees may be. Were the rules followed? How much was the estate valued at? Was it complicated or were there unusual assets involved (e.g., business to be liquidated)? Were State or Federal Estate Tax Returns involved/ Was a percentage used to calculate the fees? How does it compare to the fees and/or percentages charged by attorneys performing similar services? How simple or complicated was the estate to administer? These answers may justify a higher than usual fee and should be considered. If you'd like to discuss this, call me at 973-377-3313.
Re: Can I Sign the Release for an Estate But Still Sue the Probate Attorney?
I agree with Attorney Slater. Object to the account.
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