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JD
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Experience:  Over 11 years in practice as a litigator ... civil and criminal
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In a probate case. Do the challenging parties have the right

Resolved Question:

In a probate case. Do the challenging parties have the right to subpoena the personal account information of the personal representative of the deceased.
Submitted: 4 years ago.
Category: Legal
Expert:  JD replied 4 years ago.

Maybe.

 

Obviously you would want to file a motion to quash any such subpoena and require them to demonstrate a relevant issue to the judge that justifies the intrusion into your personal affairs. To quash a subpoena means to have the court withdraw it and toss it out. Should the judge decide to permit the subpoena, you may also request the judge review the records in camera (in private) and only permit your adversary to review those records the court finds are relevant to the issue at hand. I can think of certain issues that may make this appropriate, but if it is a fishing expedition then it should be quashed.

 

If you are unhappy with your attorney's performance I strongly recommend you seek a second local opinion and perhaps consider hiring a new lawyer. These matters are too important not to get a second opinion.

 

Please reply if I can help further.

 

________________________

Customer: replied 4 years ago.
The only monies that were transferred to my account have been openly admitted and discussed with all parties, as well as the dispersement of those funds. I acted on the will as it was at the time. The challenge to the will came as the result of a civil settlement that commenced ten years prior to my mother's death. The grounds for overturning the will was the lack of a second witness to her changes eliminating two of my siblings from the will. One has been missing for over five years and presumed dead. The other is drug dependent and has not been around the family in years. She is the one that challenged the will after the class action suit came to bear six months after my mother's death. The challenging attorney is asking for all of my bank records from early 2008 to the present. WAAAAY more information than is reasonable. They are also subpoenaing my mother's accounts which I have no problem with and understand. Those records will show where every penny of her money went. So what grounds would they possibly have to see mine? Also, is there somewhere to get a listing of top will/probate attorneys in this area or do I need a criminal attorney? And finally, due to his (what seems to me) mishandling of this case, can I file suit against him in this situation, or would that be a waste of time.
Expert:  JD replied 4 years ago.

1) Their request does sound unduly burdensome, particularly if your mother's bank records are clear. File the motion to quash. If the judge gives them limited access, just make sure to request the judge review those records in camera and only turn over those he/she deems relevant. The only reason I can see for them to need your records is if any disbursement from your mother's account(s) are unclear or if there are allegations/suspicions of unaccounted funds in the estate.

 

2) You need an estate lawyer. If you cannot find one by referral, try http://www.lawyers.com/ where you can search by practice area and geographical location. There are also peer review ratings of the attorneys that may influence your decision process.

 

3) Have your new attorney review the entire case and give you an opinion about your first attorney's performance. There is no way for me to assess this without seeing the entire file. Professional malpractice cases are difficult, but get the second opinion and cross the malpractice bridge when and if you come to it. If your attorney's performance has been so deficient as to constitute malpractice then it should be apparent to your new attorney. If your attorney has failed to meet his/her contractual obligations under the representation agreement, you may have a separate breach of contract issue that may be a bit easier to pursue. Again, I would need to see your representation agreement, correspondence with your attorney, and the attorney's file to make that determination. It would be better to discuss that with your new lawyer.

 

Please reply if I can help further.

 

________________________

 

 

Customer: replied 4 years ago.
One last quick one. If I take this to my existing attorney and he either does not do it or says it is not necessary, should I fire him then. He has refused a couple of my requests in this case already.

Thank you.
Expert:  JD replied 4 years ago.

I would never second guess an attorney based on a short online "conversation".

 

I have not seen your file or been involved in this estate contest. I have not reviewed the court record or had an ongoing attorney-client relationship with you. It would be reckless for me to answer this final question in regard to your current attorney's performance. As far as I know, he could be doing a great job... but that's not the point.

 

My concern is more about your dissatisfaction and distrust of your lawyer. When such a breakdown of the attorney-client relationship occurs, it is imperative for the attorney and client to either repair the communication and trust gap, or for a new attorney to become involved. Proceeding with the case while an issue exists between attorney and client can place you at a disadvantage.

 

That is where my concern lies.

 

So take all your files and get a second opinion... this could serve to restore your confidence in your current attorney or it could cause you to change attorneys. Either way it should help your case.

 

Please reply I can help further.

 

________________________

JD, Lawyer
Category: Legal
Satisfied Customers: 1335
Experience: Over 11 years in practice as a litigator ... civil and criminal
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