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Unethical lawyer ???

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ShadyBrother

Junior Member
I'm looking for some general information. My mother passed away on Sunday, November 20, 2016. She had a will that was written back in 1996. It named her two sisters as executors and everything to be split, 50/50 between my brother and I. She kept a copy of it in her safe, and before she died she told me to take it and hold on to it. On the Friday after her death my brother sent a text basically threatening me that I could either hand over the will, (that same day, to him) or he will be going to court the coming Monday to file for letters of administration. I didn't have the original will in my possession at the time. I had to find it.

Eventually I tracked down the original will and the lawyer who wrote it, mailed it to me on December 5th. Earlier that week I was served with a citation to appear in court, in mid-January. My brother had filed for letters of administration on Dec. 1, 2016.

I have two questions about the ethics of a eldercare/probate attorney and would like to know if there is any violations occurring. I did some research and found the form online that one would need to fill out in order to file for Letters of Administration. On that affidavit, there is a paragraph that states the person applying for Letters of Administration has done a diligent search for the will and has determined there is no will in existence . . Clearly my brother was lying when he signed that paper. I have the text message to prove so. My attorney told me that in his 40+ years of practice he has never seen anyone file for letters of admin, that quickly after the decedent passes. She died the Sunday before thanksgiving. Monday was spent preparing for the wake. We held services for her on Tuesday and Wednesday and that Thursday was thanksgiving. I would assume most attorneys don't work on Black Friday, nor the weekends. That would mean in four days he performed a thorough search? It seems highly unlikely.

One would believe an ethical attorney would be aware of this and would inform his or her client, that it may not look good in the eyes of the surrogates to file so soon. My attorney also informed me that the paperwork itself needed to file for letters of administration takes at least two weeks to complete. That would mean they started on it before my mom even died.

After I received the will on December 7th, 2016, my attorney filed it with the surrogate court . I also handed him a screen shot of my brother's text where he not only acknowledged the existence of the will but also made specific mention of who the executors are. Of course this put an end to any other motions that were filed by my brother. As I said earlier, my mom had appointed two of her sisters as executors. My aunts are using the same attorney to file the petition for probate that my brother used for letters of petition. Had the letters of administration happened, I absolutely would've objected to my brother being administrator. That isn't what my mom wanted, that is why she created a will.

In short, is the attorney being unethical by filing for my brother, the letters of administration without letting an adequate amount of time pass to perform a diligent search? Also, wouldn't there be a conflict of interest with him representing my aunts as the executors, right after he had already represented my brother when he filed for letters of administration ? (especially now that he knows my brother was lying to him about there being no will).
 


quincy

Senior Member
I'm looking for some general information. My mother passed away on Sunday, November 20, 2016. She had a will that was written back in 1996. It named her two sisters as executors and everything to be split, 50/50 between my brother and I. She kept a copy of it in her safe, and before she died she told me to take it and hold on to it. On the Friday after her death my brother sent a text basically threatening me that I could either hand over the will, (that same day, to him) or he will be going to court the coming Monday to file for letters of administration. I didn't have the original will in my possession at the time. I had to find it.

Eventually I tracked down the original will and the lawyer who wrote it, mailed it to me on December 5th. Earlier that week I was served with a citation to appear in court, in mid-January. My brother had filed for letters of administration on Dec. 1, 2016.

I have two questions about the ethics of a eldercare/probate attorney and would like to know if there is any violations occurring. I did some research and found the form online that one would need to fill out in order to file for Letters of Administration. On that affidavit, there is a paragraph that states the person applying for Letters of Administration has done a diligent search for the will and has determined there is no will in existence . . Clearly my brother was lying when he signed that paper. I have the text message to prove so. My attorney told me that in his 40+ years of practice he has never seen anyone file for letters of admin, that quickly after the decedent passes. She died the Sunday before thanksgiving. Monday was spent preparing for the wake. We held services for her on Tuesday and Wednesday and that Thursday was thanksgiving. I would assume most attorneys don't work on Black Friday, nor the weekends. That would mean in four days he performed a thorough search? It seems highly unlikely.

One would believe an ethical attorney would be aware of this and would inform his or her client, that it may not look good in the eyes of the surrogates to file so soon. My attorney also informed me that the paperwork itself needed to file for letters of administration takes at least two weeks to complete. That would mean they started on it before my mom even died.

After I received the will on December 7th, 2016, my attorney filed it with the surrogate court . I also handed him a screen shot of my brother's text where he not only acknowledged the existence of the will but also made specific mention of who the executors are. Of course this put an end to any other motions that were filed by my brother. As I said earlier, my mom had appointed two of her sisters as executors. My aunts are using the same attorney to file the petition for probate that my brother used for letters of petition. Had the letters of administration happened, I absolutely would've objected to my brother being administrator. That isn't what my mom wanted, that is why she created a will.

In short, is the attorney being unethical by filing for my brother, the letters of administration without letting an adequate amount of time pass to perform a diligent search? Also, wouldn't there be a conflict of interest with him representing my aunts as the executors, right after he had already represented my brother when he filed for letters of administration ? (especially now that he knows my brother was lying to him about there being no will).
The name of your state is ... ?
 

Dandy Don

Senior Member
Please provide the name of your state, so that more specific advice that applies to your state can be supplied.

Please forgive your brother for being a bit anxious to get probate started. How was he to have known that it takes 2 weeks to complete paperwork? He just wanted to get probate started so he can eventually get what he is entitled to.
He was half right--he did a diligent search for it, but was untruthful about the "there was no will be found" part.

It is not a conflict of interest--the only thing this attorney is interested in is getting his fee--and he is representing and working on behalf of all of the beneficiaries, both you and your brother.

The only question I have is: are the sisters still willing to serve as executors or are they going to let the attorney do it?
 

ShadyBrother

Junior Member
Please provide the name of your state, so that more specific advice that applies to your state can be supplied.

Please forgive your brother for being a bit anxious to get probate started. How was he to have known that it takes 2 weeks to complete paperwork? He just wanted to get probate started so he can eventually get what he is entitled to.
He was half right--he did a diligent search for it, but was untruthful about the "there was no will be found" part.

It is not a conflict of interest--the only thing this attorney is interested in is getting his fee--and he is representing and working on behalf of all of the beneficiaries, both you and your brother.

The only question I have is: are the sisters still willing to serve as executors or are they going to let the attorney do it?
I'm definitely not going to forgive my brother. This is only a small part of all the crazy stuff he's done, like signing power of attorney for himself over to his wife, planting cameras in my mom's house while she was in the hospital dying, sneaking into her home and going through her personal belongings without her consent (again, while she was in the hospital), harassing her daily while she lay their slowly dying. We've been estranged for three years. He and his wife did absolutely NOTHING to help my mom when she was sick but they were more than happy to take over her stuff when she was dying because they knew they were getting something out of it. Yeah technically he's "entitled" but he shouldn't feel so "entitied" given the fact he completely abandoned her for three years, let his wife talk to her like she was a piece of trash, and constantly dangled her grandchild over her head like a carrot! His inheritance is all he gives a XXX about!

My mom wanted to cut him out of her will altogether and I talked her out of it. I'm sorry I did. He's a vile human being. He doesn't deserve XX but unfortunately like you said, he's "entitled".

I don't see how he did a diligent search. His attorney is not representing me. I never agreed to that. I'm not signing any waivers of consent or anything until I speak with my attorney.

As far as the sisters, I assume they are serving seeing that they are using the same lawyer as my brother and they're trying to get me to sign the waiver.
 
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Dandy Don

Senior Member
What he did does not rise to the level of anything being illegal.

An attorney can represent whoever he wants. There is no apparent conflict of interest.
 

ShadyBrother

Junior Member
Just to let everyone know here, in case anyone should find themselves in a similar situation, there is indeed a conflict of interest for the attorney and what he is doing is unethical. my attorney filed an objection to my aunts being the executors based on the grounds that there is a conflict of interest that exists with their representation. My brother improperly filed for letters of administration with the knowledge that a will did indeed exist, and we provided proof of that. That is one interest in the same matter. The attorney is now representing my aunts and he now has his name on an improper petition for LOA for my brother and the petitions for my aunts to be executors. My objection was accepted by the surrogates court. If I didn't have a valid objection, the surrogate judge could've and probably would've thrown my objection out right then and there. Their attorney motioned to have my objection overruled and the judge denied him. I assume this means the surrogate judge sees something fishy here.
 

Zigner

Senior Member, Non-Attorney
Just to let everyone know here, in case anyone should find themselves in a similar situation, there is indeed a conflict of interest for the attorney and what he is doing is unethical. my attorney filed an objection to my aunts being the executors based on the grounds that there is a conflict of interest that exists with their representation. My brother improperly filed for letters of administration with the knowledge that a will did indeed exist, and we provided proof of that. That is one interest in the same matter. The attorney is now representing my aunts and he now has his name on an improper petition for LOA for my brother and the petitions for my aunts to be executors. My objection was accepted by the surrogates court. If I didn't have a valid objection, the surrogate judge could've and probably would've thrown my objection out right then and there. Their attorney motioned to have my objection overruled and the judge denied him. I assume this means the surrogate judge sees something fishy here.
No, it means that the judge is willing to listen to what you have to say before deciding on the matter.

Why did you start a new thread on this? Please keep your questions in this thread.

A couple of other things: Your brother DID try to find the only purported will, and was unable to do so. He then filed for LOA, as is proper. Once the will was presented, he withdrew his petition. Then, since they were so named in the will, your aunt(s) applied to be appointed as administrator(s).

I really don't see what you are fighting here.
 

ShadyBrother

Junior Member
No, it means that the judge is willing to listen to what you have to say before deciding on the matter.

Why did you start a new thread on this? Please keep your questions in this thread.

A couple of other things: Your brother DID try to find the only purported will, and was unable to do so. He then filed for LOA, as is proper. Once the will was presented, he withdrew his petition. Then, since they were so named in the will, your aunt(s) applied to be appointed as administrator(s).

I really don't see what you are fighting here.
Ok, firstly, that's your opinion. I'm going off of what my lawyer told me. No offense but I think he's more familiar with the surrogates court and judges in my county than you are.

Secondly, how would you know if my brother tried to find the will? Did you speak to him? He didn't try. In a conversation with my husband he told me that he wasn't going to bother looking for the original will and that he was just going to file for administration because probating a will is going to take too long. If you are aware of the existence of a will, then you should make an attempt to get a copy of the will. It took me 2 weeks to track it down and find it. Sorry, four days is not diligent. Maybe you need to revisit the definition of dilligent. You also should maybe read a copy of the standard Petition form for LOA In NY. He signed a piece of paper that said he "determined no will existed". A few days prior to that he wrote my husband a text message that read, "either my sister could hand over a copy of the will that names [our two aunts] as executors or I will be going to the court Monday to file for administration.". Had his lawyer been a good lawyer he would've informed him that 9 out of 10 times, the testator doesn't hold on to their own will, their lawyer does. He was aware that what I had was only a copy. He did nothing to pursue the original copy. If what he did was right, why did my lawyer include it in my objection?

Thirdly, he did NOT "withdraw" his petition. The will superceeded it once it was filed with the court. His petition was null and void.

My aunt's didn't "apply". They were named in the will as the executors. They petitioned the court and as an heir I have the right to object to their petition.

You don't see what I'm fighting because I didn't write what I was fighting. My aunts still, to this date have not been appointed as executors. I entered an objection to their petition based on three separate things. The main one being that they "allowed" my brother to enter the property and take whatever he wanted. Since they refuse to communicate with me, I as a 50% heir, was not informed that they were removing items from the property. Their jobs as executors is to act in the best interest of the estate and BOTH heirs and protect the assets. With that said, they weren't even appointed as executors at that time and thusly had no authority to tell ANYONE to remove ANYTHING from the property. The other part of my objection is their representation. They are using the same attorney as my brother which again, wasn't discussed with me. The same lawyer cannot represent two people with two separate interests in the same matter. I can site case law if you'd like. I am fighting their appointment as executors because they are acting improperly and puttting the assets at risk.

Fifthly, (is that where we are?) I'm sorry. I didn't know I wasn't allowed to make more than one post. My second post was completely unrelated to this one. If you don't mind, can you please show me where it says I can only post one thread on the same matter, because I see a few people have posted separate threads on the same matter. Why doesn't the rule apply to them?

Sixthly, I'm not understanding why you are so defensive over this. I'm just asking legal questions as many other people obviously do here. Maybe I'm missing something but I assumed that was the purpose of this forum. If you think my post is stupid, or a waste of time, don't reply to it. No one is forcing you to reply.

I'm curious, what are your credentials? What do you know about New York State probate law that allows you to comment on it?

I'm sure this post will get closed, which is fine. I was just asking a question as I waited to hear back from my attorney. Again, thought that's why forum is here.
 
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