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We believe a laywer appointed as executor for an estate in

Mass. USA seems to be...
We believe a laywer appointed as executor for an estate in Mass. USA seems to be delaying the process and charging huge fees for time. He has not responded to a request to state hours/jobs done, or to inform us properly about what he is doing now. Is there any way legally to stop her?
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Answered in 25 minutes by:
6/11/2013
Law Educator, Esq.
Category: Estate Law
Satisfied Customers: 121,004
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Yes, if you believe the executor is not properly performing their duties and they are charging excessive fees, the proper means of challenging them would be to file a motion in the probate court in the town/city in MA where the estate was located and you can challenge both the conduct of the executor and the amount of their fees and the court will make the attorney present an itemized bill to the court and you and then you can challenge any individual items on that bill. Also, you as beneficiaries can jointly file to have the executor removed and replaced and this would be done by order of the probate court.

At this point, if you do not get satisfactory answers from the attorney/executor, your next step is to file a complaint with the MA Board of Bar Examiners Office of Disciplinary Counsel against the attorney and also to engage another local probate attorney to represent you as beneficiaries to remove the executor and to also get an accounting from the executor to challenge their fees.



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Experience: Experienced in Trust and Succession Law, including Louisiana Laws
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Customer reply replied 4 years ago

We are wondering whether the lawyer has given him/herslf extraordinary powers when she prepared the will with my brother and sister in law (brother died in Dec 2012, sister in law inApril 2013). We wonder whether these are standard clauses in the will. Could we forward a copy of the will of the sister in law, and a letter from the lawyer to review? What might that cost?

Thank you for your response and follow up.

We do have a tough time receiving documents, but if you can upload it here or if you can upload it to some document site and give me the link for me to review it and tell me which clauses you are questioning, then we can assist you.
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Customer reply replied 4 years ago

I can upload docs to a password protected site.


 


I am not clear on the procedure for billing etc. Should I take out the justanswer service for a month and ask the question in that context, or would this go beyond that and require separate billing?

Thank you for your response.

As long as I an access the link to see the document that is fine.

As far as payment you can pay what you believe the time of the expert was worth and you can do it in the form of leaving a bonus or you can take out a subscription and ask multiple new questions and any feedback you leave would not cost you additional money over the subscription fee
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Customer reply replied 4 years ago

OK, I took out a subscription, but have had some difficulty setting a username etc. I contacted the service via e-mail. In the meantime, I want to go ahead and upload the docs etc. Is it OK that they have specific names etc in them or should those be deleted?

You can delete the names or as soon as we finish you can simply remove that document from the site and nobody will be able to access it.
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Customer reply replied 4 years ago

Ok I have taken out the subscription, but understand that additional charges might be appropriate cf the clause "Use of this service does not create any attorney client relationship. Information provided is not the practice of law but intended to direct you in finding an attorney in your locale." I guess we proceed with you in Trust both ways for now.


 


I have extracted key clauses from the will and copied them below, with two questions. Basically we want to get some sense whether The Lawyer who is acting as executor is taking unusual liberties in her role as executor and paid lawyer.


 


THE CONTEXT: The Lawyer was made executor of the estate and wrote the will which my brother and my sister in law (XXX) signed. They were both quite old at the time and did not understand English well. My brother died in Dec., my sister in law in April.


 


The estate was left by XXX to two beneficiaries, myself and a niece of XXX.


 


There is some suspicion that some valuables were stolen from the estate in the days after XXX died, and The Lawyer has told us in a letter that she is pursuing that issue.


 


While we concur that some valuables may have been stolen, we are concerned that The Lawyer is using that issue as a way to charge a lot of $ to the estate and potentially considerably more than the valuables themselves might be worth if they were recovered, which we think unlikely. (The Lawyer does not mention reporting the matter to the police.) The Lawyer has told us verbally that she is in complete charge of managing how the estate is sold, our access to it etc.


 


In a letter (the only one) the lawyer wrote to us: "....As you are aware, I have been appointed Special Personal Representative of the Estate of XXXX in accordance with her wishes, as expressed in her duly executed Will.... It is my job to marshal her assets, pay her debts and the expenses of the estate and then distribute the assets of her estate in accordance with the provisions of her Will in accordance with the laws of the Commonwealth of Massachusetts."


 


In the same letter she tells us that she is billing the estate $325.00 per hour "which is my customary and usual rate, in keeping with the rates of other attorneys in my area with my level of experience".. but gives no indication of chgarges to date and has not responded to a written request to tell us that, also to consult us ahead of time in matters where we might have some say in how the estate is dealt with. The Lawyer has been very difficult to contact, (We live in canada, the other benefiuciary lives in the U.S.)


 


Below are two clauses in the will of XXX.


OUR QUESTION #1, Are standard sorts of clauses or do they give the lawyer, as executor, unusual powers? (Might they be interpreted as Conflict of Interest in the event The Lawyer bills excessively and we appeal The Lawyer's role as executor?)


 


THE CLAUSES


 


THIRD: I appoint my Husband, YYY, of TOWN, Massachusetts, to serve as executor of this will. If he fails or ceases to serve, I appoint ATTORNEY XXX to serve as executor in his place. I request that any executor be appointed temporary executor upon application therefore. I direct that the above-named and any other person appointed to serve as executor hereof or adlninistrator of my estate shall be exempt from giving any bond, or, if required to give bond, shall be exempt from furnishing any surety. References in this will to "executor" shall include any person or corporation administering my estate under this will.


 


FIFTH:


In addition to all powers conferred by law or by other provisions of this will, my executor shall have the following powers without order or license of court: to retain for any period any property I may own at Iny death and to invest or reinvest in any property, even if any or all of the property retained or acquired is of a character or amount which would not ordinarily be considered suitable for fiduciary investment, and for reasonable periods to hold cash uninvested; to sell, exchange, lease and nlake contracts concelning real or personal property for such consideration and upon such terms as to credit or otherwise as my executor deen is advisable, which leases and contracts may extend beyond the term of the settllement of my estate; to give options, to execute and deliver any appropriate instrumentd; to discharge mortgages of record; to settle by compromise or arbitration or otherwise any claim or matter in dispute, and to concede or abandon any my executor does not consider worth pursuing; and, to tbe extent permitted by law applicable to my estate, to distribute any property payable to a minor beneficiary to the minor or any other person deemed suitable by the executor, and the receipt of any such distributee shall be sufficient evidence of the satisfaction of my executor's obligation.


 


----------------------------------------------------


 


QUESTION #2


 


The final page of the will is reproduced below with specific details generic.


 


THE LAST WILL AND TESTAMENT OF XXX


COMMONWEALTH OF MASSACHUSETTS


Town, ss January 25, 2010


 


On this the 25th day ofJanuary, 2010, before me the undersigned notary public, personally appeared XXX, the testator, and the witnesses respectively, and they all proved to me through satisfactory evidence of identification, which was my personal knowledge of them, to be the persons whose names are signed on the preceding or attached document, and acknowledged to me that each signed it voluntarily for its stated purpose.


 


LAWYERS SIGNATURE


Lawyer's name - Notary Public


My Comission Expires: Oct XXX, 2011


 


OUR QUESTION#2 - is there anything unusual in one lawyer drafting the will, being named as executor, and serving as the Notary Public for it?

Thank you for your additional information.

There is nothing unusual about an attorney who drafts a will being appointed or named as executor of the estate. However, when the attorney is not being transparent with the heirs when they ask for an accounting or what is being done on the estate, the heirs can get together and agree to seek removal of the executor if the executor is not doing their job for the estate or to force them to at least to submit a billing and accounting for the estate to prove they are properly performing their duties and protecting the estate for the heirs. If the heirs do bring such a challenge, the executor will have to present his proof to the probate court that he is properly managing the account and he/she has taken action to recover property stolen from the estate and is not billing for unnecessary actions. Unfortunately, this means that the heirs need to get a new attorney to do this, but it is recourse the heirs have legally if the attorney is not presenting them with an accounting for what is being done.

Second, it is not illegal for an attorney to draft a will and sign as notary to the testator's signatures on that self proving clause you typed above. That self proving clause means that the witnesses do not have to actually be called to court to testify they witnessed the testators signing the will.

At this point you need to send the attorney a written demand from the heirs for an accounting of the estate and also a detailed bill to date for her services and a demand that they tell you what is being done to recover the stolen property and the value of that property. If she refuses to provide any of that, then you would have to decide whether or not to get an attorney and file a motion in probate to get the court to force the attorney/executor to do so or ask the court to have them removed based on appearance of conflict of interest and refusal to perform the duties they are bound to perform.
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