Ethical obligations of representing a personal representative in probate

When our firm agrees to take a probate case, there is one guiding ethical principle that we follow, which is that we represent the personal representative. This person is sometimes called the executive or an administrator. We don’t represent the estate itself or the individual beneficiaries of the estate. This distinction is important, and the client should have a clear understanding of this at the outset of the representation. Often, someone seeking such representation in a probate may think that the attorney is a kind of neutral referee, or that they somehow represent the family as a whole. This is typically not the case, and such actions would be could pose an ethical dilemma for the attorney.

When an attorney represents the personal representative, however, the attorney’s client is that person in their role as the personal representative, and the ethical duties of the attorney run to that person in that role alone. For instance, the personal representative is deemed to be a fiduciary. That means their attorney is not just an advocate, but has the ethical obligation to assist that person in fulfilling their legal duties to the court and to the beneficiaries of the estate. Duties like impartiality, transparency, and compliance with the testator’s wishes as expressed in their will, if they have one, and the proper administration of the estate in accordance with the Tennessee probate law.

Conflicts of interest are another ethical concern. Beneficiaries frequently want to treat the personal representative’s attorney as their own attorney, asking for advice or explanations. While no one wants to be unhelpful, an attorney must always be careful not to give legal advice to non-clients or create the impression that they represent multiple parties in the same matter, even informally. Clear communication is essential. Ethical representation requires explaining the personal representative’s responsibilities, the consequences of breaching those duties, and the limits of the attorney’s representation.

Ultimately, representing a personal representative in a probate matter isn’t about taking sides in a family dispute. It’s about helping that person do the job that they were selected to do lawfully and ethically while protecting the integrity of the process and the attorney’s professional obligations.