Can attorney be heir in a will the attorney writes?

This column first appeared on the San Antonio Express-News.com and the MYSA.com websites.

Dear Mr. Premack: I was a caretaker for a lady. She told her attorney that I was to be taken care of when she died. She had him draw up a Will with him as the executor, and he told me that he and I were the only ones in the Will and we each got half the estate. She has now died, and the attorney is acting strangely. I went to the courthouse to read the Will and my name is not in the Will. Only his name is listed to receive the estate. I have been told that he and his father’s firm prey on old women and I think he changed her Will to take it all for himself. What do I do now? — G.T.

This is a scheme that should not succeed. It is troubling that a licensed Texas attorney would sink low enough to take the actions you recite. If your allegations are true, the attorney’s actions are not only unethical but are also strictly forbidden by law. We’ll also take a look at the ethics of your own position. But first, the attorney.

Section 254.003 of the Texas Estates Code recites that any gift made in a Will is void when the gift is made to 1) an attorney who prepares or supervises the preparation of the will; 2) a close family member of that attorney or employee of that attorney; or 3) the spouse of anyone in #2. Thus, any Will for a client which was prepared by this lawyer or his father cannot legally name either attorney as a devisee of that estate.

The Will has no effect until a probate Judge has reviewed and admitted the Will to probate. The Judge should be aware that a devise of the type you describe is void. If the court does not realize that the Will was drafted by the attorney who is also a devisee, the court should welcome and investigate a report that points out the facts.

What can you do? Begin with a phone call to the court staff. They may bring the facts to the attention of the Judge, who may decide to hold a hearing on the issue. At the same time, contact the State Bar of Texas Grievance Information Helpline at (800) 932-1900. Report your suspicions to them. Under the Disciplinary Rules of Professional Conduct, a lawyer shall not “…engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. They may investigate and begin a disciplinary proceeding against the attorney.

You also say that you suspect the attorney changed the Will – that it may have listed you as an heir, but that the attorney changed it before it was filed with the court. If so, you certainly have grounds to file a contest of the Will. Hire an attorney to represent your interests, and claim that the Will as filed with the court is a fraudulent document. Your attorney will ask the court to schedule a hearing so that your evidence can be presented.

(c) 2014 Paul Premack

Hopefully this is not where a dishonest caretaker will land. (c) 2014 Paul Premack

At the very least, this formal proceeding will allow you to highlight that the attorney who drew the Will is also the devisee named in the Will, and that arrangement is void as a matter of law. If the Judge voids the gift to the attorney, then those assets should pass under the laws of descent and distribution. The court will have to determine the identity of the legal heirs. Since you were a caretaker and not a family member, you are certainly not an heir at law. Thus, you would not receive any part of the estate by filing a contest of the Will.

Now, having assailed the attorney’s ethics, let’s take a look at your ethical position. You were the lady’s caretaker, not a long time family member. Your job was to care for her and to provide services necessary to maintain her health and comfort. If you were a paid caretaker, your compensation was your salary. Manipulating yourself into her world to the point that she wanted to care for you (give you an inheritance) could certainly be construed as exploitation by you. You impugned the attorney and his father for a pattern of preying on old women, and their behavior if real is reprehensible, illegal and unethical. Your standards as a caretaker must also avoid preying upon old women. Just like the attorney – or a plumber or a doctor – you should be paid for the service you provided. You should not seek or expect the old lady to give you an inheritance.

Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.TexasEstateandProbate.com or go to www.Premack.com to view past legal columns.

One thought on “Can attorney be heir in a will the attorney writes?

  1. Pingback: Probate Attorney Rancho Bernardo CA Probate Law | Living Trust Attorney San Diego

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