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Elderlaw: 10/01/2014

Elderlaw Advocates



Dear Len & Rosie,

My wife passed away two years ago and I have been harassed by her family ever since. Everyone wanted everything back that they ever gave us. Some people get crazy over money, but my wife’s children even fought each other over who got to keep the flowers at the funeral. They make me sick. They are animals.

My wife had a will, which turned out to be invalid because it was partially written and partially typed. Her family got themselves an attorney to steal as much as they could. After two years, a settlement has been reached between their attorney and mine.

The strange thing is, my attorney fees are twice the amount of the settlement. Can the attorney fees be deducted from her estate? I need an opinion as my attorney balked on this issue.

Larry

Dear Larry,

There is an old saying that a man who represents himself has a fool for an attorney. What people need to understand is that a homemade will that makes perfectly good sense to the average person may have a lot of problems, and may even be totally invalid. You found this out the hard way.

If a person wants a will that has dispositive provisions more complex than “I leave everything to my spouse. If she dies before me, I leave everything to our children,” then that person should see an attorney to make a will, or accept the risk that things can go horribly wrong. People in second marriages, especially those with children from a prior marriage, should always see an attorney to make a will or trust.

Let’s get to your question. You want to know if your wife’s estate should pay your legal bills. It depends. If you were appointed your wife’s Executor by the probate judge, then you have a duty to defend the estate. That means your attorney fees would normally be paid by the estate.

But, you were also fighting your wife’s family as an heir of your wife. There is an inherent conflict of interest between your duties as executor, and your interests as an heir. As an executor, your duty is to administer the estate for the benefit of all the heirs, not just yourself. There is no way of really knowing how much of the attorney fees the estate should pay. That is why your attorney will not give you an answer.

To tell you the truth, none of that really matters. You and the family of your late wife have entered into a settlement agreement to dispose of her estate. All of you agreed to forget about what the law says and cut a deal to avoid having to fight it out in court any longer. You are basically stuck with the terms of the settlement agreement you have already signed.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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