What should I do if my attorney wants to putall assetsinto probate possibly in order to pad his fees?

UPDATED: Jun 2, 2011

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What should I do if my attorney wants to putall assetsinto probate possibly in order to pad his fees?

I live in PA and my attorney wants to put everything into probate. It’s to my understanding that IRA’s, annuities, life insurance, etc, that have a beneficiary are considered non-probate items and should not go into probate. I brought this to his attention and he said he wanted to probate an annuity my father had that I was the beneficiary of. It appears that he is following the Johnson estate fee guidelines. He gets 5% for probate and 1% for non-probate. It seems like he wants the 5% instead of 1%. What should I do?

Asked on June 2, 2011 under Estate Planning, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

First, there are some grounds for putting all the assets through the estate, into probate--it can ensure they all follow the directions of a will, it provides a degree of certainty and finality to the disposition, etc. That's not to say it always is, or is here, the right decision, but it's not a given that this is wrong.

On the other hand, if the attorney is recommending choices that are bad for his client, that run against his clear instructions or against the directions contained in wills, on insurance forms, etc., then he may be committing malpractice and/or an ethical breach. If you hired this attorney, you may--and should--fire him if you don't trust him. If he's not under your control but you're worried, try contacting the state bar association and/or the office of the court that regulates attorneys and explain the situation to them; there may be grounds to dismiss this lawyer from the representation.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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