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You arrived at this page by selecting:Probate peculiarities
Probate is an odd sort of subject in the context of this discussion of the independence of lawyers. This is because in probate you are not looking after your own affairs, you are looking after the affairs of the deceased. And you are looking after them with a view to handing over the proceeds to the beneficiaries under the will of the deceased. So where are the lawyer's loyalties in this situation? You? The deceased? The beneficiaries?
The answer thankfully is quite straightforward: you. A lawyer acting in probate acts for the deceased's personal representatives (ie executors or administrators). He does not act for the beneficiaries. He does not even take into account the interests of the beneficiaries when he acts for the personal representatives. The beneficiaries can look after themselves, with their own legal advice if they wish. Simple as that.
Of course a beneficiary might ask the lawyer for advice independently of the personal representatives, and if the lawyer thinks there is no conflict of interest then no harm is done by that. But that is a separate thing, and in the absence of it the lawyer owes no duties at all to the beneficiaries. He acts for the personal representatives alone.
In many cases the personal representatives and the beneficiaries are one and the same people, or at least there is some overlap between the two. Once again this really makes no difference in principle. The lawyer acts for the personal representatives as personal representatives and that is that. The lawyer does not act for them in their other capacity as beneficiaries just because they are the same people (or partly so). Once again they can ask for that advice separately if they so wish, and might get it, but that does not alter the principle of the thing.
