A mother passes away in Brooklyn, leaving her three adult children a brownstone and a modest investment portfolio. Her eldest son is named the executor in her will. He retains an attorney to help him probate the will and administer the estate. Soon after, his younger sister calls the attorney, worried that her brother plans to sell the house too quickly. The attorney politely refuses to discuss the matter with her. The sister is confused and upset—doesn’t this lawyer work for the estate, and by extension, for all the beneficiaries?
It’s one of the most common misunderstandings I see in my practice. The answer, which surprises many families, is clear under New York law: the attorney represents the fiduciary, not the estate itself or its beneficiaries.
The Client is the Fiduciary—Period
When an executor, administrator, or trustee hires a lawyer, they establish the attorney-client relationship. The fiduciary is our client. It is to them—and only to them—that we owe the duties of confidentiality and undivided loyalty. This is not a matter of preference; it is a foundational rule of legal ethics.
The estate is an entity, but it cannot act on its own. The fiduciary—the executor in this case—is the person legally empowered to act on its behalf. They are the decision-maker. Our role as counsel is to advise that decision-maker on how to carry out their duties correctly. We advise the executor on how to gather assets, pay debts, file taxes, and ultimately distribute the remaining property according to the will. We cannot take instruction from a beneficiary, even one with a significant stake in the estate.
This is why the attorney in the opening scenario could not speak to the sister. Doing so would breach the duty of confidentiality owed to his client, the executor. While this can feel exclusionary to beneficiaries, the rule creates a clear line of communication and accountability. The executor needs candid advice to manage the estate, and that requires a privileged relationship with their counsel.
The Fiduciary’s Duty to the Beneficiaries
Here is the critical distinction—while we represent the fiduciary, the fiduciary owes a profound legal duty to the beneficiaries. This is the essence of their role. A fiduciary must act with the utmost good faith and in the best interests of the estate and those who will inherit from it. They cannot engage in self-dealing, act negligently, or favor their own interests over their duties.
A significant part of our work is guiding our client, the executor, to fulfill this high standard of care. We advise them on the rules of prudent investment, the proper way to account for every dollar, and the legal requirements for distributing assets. The law provides powerful tools for transparency. For instance, the Surrogate’s Court Procedure Act (SCPA) gives beneficiaries the right to demand a formal accounting. Under SCPA § 2205, a beneficiary can petition the court to compel an executor to show exactly what they have done with the estate’s assets.
So, while our direct client is the executor, our advice is constantly aimed at ensuring they comply with their fiduciary duty to everyone else. When we advise an executor to keep meticulous records or get a formal appraisal for a property, we are protecting them from a potential lawsuit—and by extension, we are ensuring the beneficiaries are treated fairly.
When Interests Collide
The system works well when the fiduciary is diligent and impartial. But challenges arise when a fiduciary’s personal interests conflict with the estate’s interests. This happens frequently when the executor is also a major beneficiary and might, for example, wish to buy the family home from the estate. At what price?
In these situations, our counsel becomes even more important. We would advise the executor that they must secure an independent, fair-market appraisal and potentially seek the consent of the other beneficiaries or even the court. We would explain the legal exposure they face if they were to sell the asset to themselves at a discount. Our job is to keep our client on the right side of the law, which in turn protects the integrity of the estate.
If a beneficiary truly believes an executor is mismanaging the estate or breaching their duty, their recourse is not to call the executor’s attorney. Their proper step is to hire their own independent counsel. That attorney can then formally demand an accounting, challenge the executor’s actions in Surrogate’s Court, and advocate solely for the beneficiary’s interests.
Understanding this structure is not an academic exercise. It defines the roles and responsibilities for everyone involved, setting clear expectations and providing a predictable path for resolving disputes. It ensures that the stewardship of a loved one’s legacy is handled with legal and ethical clarity.
If you have been named an executor in a will and are preparing to take on this responsibility, the first step is to understand the scope of your duties. We invite you to schedule a consultation to review the will and outline the responsibilities you will be undertaking as a fiduciary.
