Does the Estate’s Solicitor Also Act for Me as a Beneficiary?

Introduction

When a person dies, the executor administers the estate by protecting assets, paying debts and distributing property under the Will. The estate solicitor usually acts for the executor, not for individual beneficiaries, even when the solicitor contacts beneficiaries for information or views.

That distinction matters when a beneficiary seeks advice about an entitlement, estate accounts, delayed distribution or a dispute. The discussion covers the solicitor’s role, information beneficiaries may request, when independent legal advice may be needed, and situations where the executor is also a beneficiary or the appointed executor is a lawyer.

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Who Is the Estate Solicitor’s Client?

The Executor Represents the Estate

The executor is the estate solicitor’s client, not the individual beneficiaries. The executor represents the estate as a whole, and the estate is treated as a form of trust. 

This means the solicitor assists the executor with responsibilities such as administering the estate in accordance with the Will and applicable legal requirements, while wills and estate planning lawyers can advise on related estate matters.

Beneficiaries may receive an inheritance from the estate, but they are not automatically represented by the executor or the executor’s solicitor. In this matter, beneficiaries who are not executors do not have power to make decisions about how the estate is administered.

The Fiduciary Duty Owed to Beneficiaries

The executor or administrator holds a fiduciary relationship with the beneficiaries. The executor must act in accordance with the Will and the law, administer the estate with care, and act impartially and in the best interests of the beneficiaries.

This duty belongs to the executor or administrator, rather than creating a solicitor-client relationship between each beneficiary and the estate solicitor. The executor must also administer and distribute the estate in a timely manner, taking account of relevant facts and issues affecting the beneficiaries.

An Everyday Example of the Solicitor Role

An executor or the executor’s solicitor may contact a beneficiary to request information, ask for views about a proposal, or check whether the beneficiary agrees with a suggested course of action. Receiving that request does not mean the solicitor acts for the beneficiary.

The solicitor continues to act on the executor’s instructions. A beneficiary cannot require the executor to adopt their preferred position or direct the executor’s solicitor to take steps on their personal behalf.

What Information Can a Beneficiary Request?

Entitlement Details & Estate Accounts

A beneficiary is entitled to be informed about their entitlement under the Will, the estate’s assets and liabilities, matters affecting distribution, and the estimated date for receiving the relevant estate assets. The executor should also explain any potential delay.

Specific gifts under a Will should generally be distributed within 12 months of the deceased’s death. Unpaid cash legacies generally attract interest after 12 months, subject to the Will and any court order. A beneficiary may request estate accounts showing:

• amounts collected into the estate;
• payments made from the estate;
• assets transferred to beneficiaries;
• distributions made; and
• assets held by the executor for the estate at the account date.

Document Checklist for Beneficiaries

A beneficiary may request documents that explain the Will, the estate’s financial position and the way the estate has been administered. The Succession Act 2006 (NSW) (‘Succession Act’) gives certain people a right to obtain a copy of a deceased person’s Will.

The requested documents may include:

• a copy of the Will;
• a summary of the estate’s assets and liabilities; and
• formal estate accounts showing receipts, payments, transferred assets and distributions.

The estate accounts can help a beneficiary assess whether the estate money and assets have been collected, paid out and transferred as recorded.

Why Might the Solicitor Be Unable to Advise Every Beneficiary?

The Rule Against Conflicts of Interest

A solicitor acting for the executor must avoid conflicts between duties owed to two or more current clients. Rule 11.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (‘Australian Solicitors’ Conduct Rules’) prevents a solicitor or law practice from acting for multiple clients where their interests are adverse and duties to those clients conflict or may conflict.

Under Rule 11.2 of the Australian Solicitors’ Conduct Rules, the solicitor generally cannot act for both the executor and a beneficiary in the same or related matter where their interests conflict. Acting for both parties may only be possible if the requirements for informed consent, confidentiality and information barriers in Rules 11.3 and 11.4 of the Australian Solicitors’ Conduct Rules are satisfied.

The Requirement to Follow Executor Instructions

The estate solicitor’s client is the executor. Under Rule 8.1 of the Australian Solicitors’ Conduct Rules, a solicitor may only accept and follow a client’s lawful, proper and competent instructions. A beneficiary may provide information or express a view, but cannot direct the estate solicitor’s actions. 

The solicitor’s work, including communications with beneficiaries, is controlled by the executor’s instructions. A beneficiary seeking advice about a personal concern or a particular outcome will generally need to obtain an independent solicitor.

What if the Executor Is Also a Beneficiary?

Dual Roles & Responsibilities

An executor may also be named as a beneficiary under the Will. However, holding both roles does not allow the executor to make decisions that favour their own interests or those of one beneficiary over another.

The executor must administer the estate in accordance with the Will and cannot prefer one beneficiary’s interests over another’s unless the Will or other relevant circumstances make that appropriate.

The Duty of Care Owed by a Lawyer Executor

A lawyer appointed as executor has the same duties as any other executor. The lawyer must administer the estate in accordance with the Will and carry out the executor’s responsibilities for the benefit of the beneficiaries.

A lawyer who is also the executor, or one of the executors, owes a duty of care to the beneficiaries both as a lawyer and as an executor. This differs from the position of a lawyer acting only for the executor, who has no particular duty to the beneficiaries because the executor, rather than the beneficiaries, is the lawyer’s client.

When Should a Beneficiary Obtain Independent Legal Advice?

Disputes Between Beneficiaries

Independent legal advice may be needed when beneficiaries disagree about the estate or hold different views about how it should be administered. In these situations, each beneficiary may need a separate solicitor, because the executor’s solicitor cannot personally represent beneficiaries with competing interests.

A beneficiary considering a claim to contest the Will may also need advice from will dispute lawyers for beneficiaries contesting a Will if they want an active and personal role in the proceedings. The executor and the executor’s solicitor cannot be expected to act on that beneficiary’s personal instructions.

Specific Next Steps for Beneficiary Concerns

A beneficiary who is unhappy with the estate administration should first raise the concern with the executor. The executor’s solicitor generally acts only on the executor’s instructions and may be unable to assist with the beneficiary’s personal concern.

A beneficiary seeking a particular outcome or wishing to raise a specific issue should retain an independent solicitor. LawBridge can provide practical legal guidance about the beneficiary’s position and the steps available in relation to the estate.

Conclusion

The estate solicitor ordinarily acts for the executor, while the executor must administer the estate for the beneficiaries and according to the Will. A beneficiary may request information and estate accounts, but separate legal advice may be needed for a personal concern, disagreement or proposed claim.

When a beneficiary needs advice about an individual position, contact LawBridge’s will dispute lawyers about your beneficiary concerns for practical legal guidance and an explanation of the available steps. This can help clarify the difference between estate administration and personal representation before further action is taken.

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