This past week, the Michigan Court of Appeals issued and published an important decision that clarifies the issue of whether an attorney represents the interests of the entire probate estate or just the fiduciary (Personal Representative, Conservator, Guardian, Trustee, etc.). Before this ruling, many attorneys and clients were confused by this issue.  For years, despite my urging to the contrary, I have spoken with colleagues that believed that the hired attorney owed a duty to the probate estate’s other interested parties, including the heirs or devisees.

The issue comes up often. Imagine a scenario where the attorney represents a Personal Representative of a deceased probate estate whose interests are different from those of the heirs of the estate.  The Personal Representative wants to distribute the estate assets one way and the heirs another way.  Does the attorney have a conflict of interest between these competing positions?

Or, imagine a scenario in which a Conservator breaches her duty to a protected individual based on advice of the Conservator’s lawyer. Could the attorney be sued by the protected individual for providing poor legal advice?

The Case

On January 19, 2017, the Court of Appeals held in the case titled Estate of Tyler Jacob Maki that the attorney hired by a fiduciary represents only the fiduciary and not the entire estate.  Specifically, the Court held that when an attorney enters into an attorney-client relationship with a fiduciary, it does not have an attorney-client relationship with the estate.

The Estates and Protected Individuals Code (EPIC) and the Michigan Court Rules govern the powers of fiduciaries. The Maki case specifically addressed only the issue of Conservators.  The Court analyzed the relevant statutes and case law.

The Court held, “The statute clarifies that the attorney performs legal services for the Conservator, and advises or assists the Conservator in the performance of his or her duties. This language focuses solely on the services and assistance provided to the Conservator, which establishes that the attorney represents the conservator in the performance of his or her duties. The language in EPIC contrasts with the language of the former Revised Probate Code (RPC), MCL 700.101 et seq., which provided, ‘Without obtaining a court order, a fiduciary of an estate may employ counsel to perform necessary legal services in behalf of the estate and the counsel shall receive reasonable compensation for the legal services.’ MCL 700.543 (emphasis added).”

The Michigan Court Rules provide further clarification on this issue. MCR 5.117(A) provides, “An attorney filing an appearance on behalf of a fiduciary shall represent the fiduciary.” The plain language of this court rule is clear that an attorney appearing in the probate court on behalf a fiduciary represents the fiduciary, rather than the estate.

The Court went on to rule, “Therefore, we conclude that the plain language of the statute establishes that an attorney hired by a conservator represents the conservator, and the attorney does not have an attorney-client relationship with the estate.”

Contact Us

So, the issue appears to be settled. The Probate Pro keeps apprised of the latest legal issues and court rulings. Contact The Probate Pro today at (248) 399-3300 to discuss your probate and trust issues.

Updated Jan 26, 2017