This is a great question I have happily answered in the past because many people are under the impression that they must call the attorney who drafted their deceased parent’s will in order to effectuate the probate process. The quick answer: no you do not have to call that attorney.
Getting that out of the way I thought it would be best to explore the pluses or minuses of this specific issue:
Potential negatives:
– You may not be a good fit with your deceased loved one’s attorney. Probate is a long process and as I tell my clients, we will have a real working relationship by the end of it.
– The drafting attorney may have a fee structure that you do not like. Not every attorney is open to a contingent fee arrangement and many probate attorneys mandate that their hourly fee for every phonecall, email, or correspondence be paid on a monthly basis. If you are not in a position to pay this hourly fee, this may not be a good fit as well.
Pontential positives:
– If the deceased had a very good relationship with his attorney, then the drafting attorney may have a real working knowledge of the estate assets and possibly may have a written list- something that can really help with the process. My experience is that most people use different attorneys for different things these days and that these neighborhood lawyers are disappearing more frequently. I like the idea of neighborhood lawyers myself and attempt to bring some of that charm into my practice, but the reality is that the big law culture that persists usually will eliminate this possibility.
At the end of the day, the attorney that represents you in a probate or administration proceeding is your attorney. Keep that in mind when you have to make that decision.
