Seeking to Remove Co-executor of an Estate
Adopted: October 22, 1999
Opinion holds that a lawyer for an estate may not seek to have one co-executor removed if the co-executor was acting within his official capacity.
Inquiry:
Several years before her death, Mother loaned $75,000 to Son A. A few years later, Mother signed a statement indicating that the loan had been settled. Mother died testate, leaving a will devising the bulk of her estate to her five children equally and naming her three sons, A, B, and C, co-executors. Letters testamentary were granted to Sons A, B, and C. Sons B and C hired Attorney X to assist with the administration of the estate. Sons B and C believe that the $75,000 given to Son A by Mother during her lifetime should be collected by the estate as a debt or treated as an advance to Son A. Attorney X filed a motion to have Son A's letters testamentary revoked and wrote a letter to Son A requesting repayment of the debt.
May Attorney X make a motion to remove Son A as a co-executor and pursue a claim against him?
Opinion:
No. RPC 137 states that "in accepting employment in regard to an estate, an attorney undertakes to represent the personal representative in his or her official capacity and the estate as an entity." After undertaking to represent all of the co-executors, a lawyer may not take action to have one co-executor removed.