Ask the Probate Judge—Two Reader Questions
Rudd, appeared March 30, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: My dad died recently, and I am named as personal representative in his will. The will also states that it is his wish that I use the law firm of "A, B and C" to handle his probate. Do I have to use the law firm that my dad specifies in his will?
No. I know of no law that requires you to use the law firm named in your father's will. As a matter of fact, personal representatives are allowed to file a probate case using "do it yourself" forms approved by the New Mexico Supreme Court. Some personal representatives choose to handle a probate "pro se" (without the help of an attorney), while others hire a lawyer of their choice to assist them. Information about the probate process and forms are available at our court's web site: www.bernco.gov/probate_judge.
Most of the provisions that I have seen in wills are not stated as an absolute. Instead, the will reads, "It is my wish (or desire or request) that my personal representative retain X law firm…" instead of "The personal representative shall retain X law firm…."
New Mexico has a "Code of Professional Responsibility," which are rules of ethics that apply to all lawyers licensed in the state. Rule 16-108(C) states, "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."
It seems clear that a lawyer cannot draft a will or trust naming the lawyer as a devisee or beneficiary, unless the lawyer is related to the testator or trustor.
The law firm provision you ask about is murkier. Lawyers have debated the issue. One group argues that a lawyer should not prepare any document from which the lawyer may benefit financially, either by inheriting or receiving attorney fees. Another group feels this is too narrow a reading of the ethics provision and that naming the law firm in a will to handle an estate is not unethical. Yet another group of lawyers argues that the provision is a matter of contract law, and that such a contract provision in a will is probably unenforceable.
One other consideration is that if a will contest arises, the lawyer who prepared the will could be called as a witness. If this happened, his or her law firm could have a conflict of interest if it were also advising the personal representative.
From a practical standpoint, I can tell you that I have handled over 1,700 probate cases. I have seen fewer than 50 wills that include the provision you mention. I believe a personal representative has used the law firm named in the will in only one or two instances. And to my knowledge, none of the other named law firms sued the personal representative for breach of contract.
My bottom line is: I think if personal representatives are not going to file pro se, they can hire whichever law firm they choose. The legal community will alert me if I am wrong.
© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved