Can an Attorney Replace Me as Executor if Hired?
Full Question:
Answer:
Every firm has its own selection of common forms, which vary by firm. It is not unusual for an attorney to be named as executor. An attorney may also be named to represent the executor. Typically the person named in the will as executor will be appointed by the court. The language you quoted says that the attorney will be authorized to represent you as executor, but it is phrased in such a manner that could be interpreted different ways. It is likely not meant to replace you as executor if you were named executor in the will, but if you think the language is ambiguous, we suggest you discuss the matter with the attorney and have him explain anything you don’t understand, so that anything you need clarified may be explained or put in writing, such as what your respective duties will be, who will be entitled to executor fees, etc.
Please see the following LA statute:
§2448. Designation of attorney
A. A testator may designate in his will an attorney to handle the legal matters of his estate, to open and close the estate, and to represent the executor. The testator may also designate one or more successor attorneys in the event the designated attorney predeceases the testator or is unable or unwilling to serve or, having served, discontinues doing so for any reason or becomes at any time incapable of acting or resigns.
B. The designation of an attorney shall also be governed by the following:
(1) The designation in a testament or a codicil of an attorney or a successor attorney to handle the legal matters of the estate shall be valid and binding on the executor, or other succession representative, and the heirs and legatees.
(2) An attorney so designated may be removed as such only for just cause.
(3) An attorney for the estate shall be allowed as compensation for his services such reasonable amount as is provided in the testament in which he is appointed. In the absence of a provision for compensation in the testament, the attorney shall be allowed such reasonable amount as is provided by agreement between the attorney, the succession representative, if any, the surviving spouse, if any, and all competent heirs or legatees of the deceased. In the absence of a provision for compensation in the testament or an agreement between the parties, the attorney for the estate shall be allowed a fair and reasonable fee for services actually rendered. The court may increase the compensation upon a proper showing that the fee provided in the testament or agreed upon between the parties is inadequate.
(4) The compensation of an attorney for the estate shall be due upon the homologation of the final account. The court may allow an attorney an advance upon his compensation at any time during the administration.
