A son, a beneficiary of his late mother’s estate in Brooklyn, calls our office. He’s concerned the executor—his sister—is not communicating about the sale of the family home. He asks for my legal opinion on her actions and wants to know his rights. I have to tell him something that often comes as a surprise: I cannot advise him. While our firm was retained to handle his mother’s estate, our client is not the estate itself, nor is it the group of beneficiaries. Our client is the executor.
This concept is one of the most misunderstood in estate administration, and the confusion often leads to family conflict. The lines of duty are precise. Understanding them from the start is critical for a smooth administration.
The Fiduciary Is the Client
When a person passes away, someone must be put in charge of their affairs. This person is called a fiduciary. If there is a will, that person is the executor named in the document. If there is no will, the Surrogate’s Court appoints an administrator. In either case, this individual has the legal authority and responsibility to manage the estate.
When our firm is hired to assist with an estate, we are retained by that fiduciary—the executor or administrator. An attorney-client relationship, with all its duties of confidentiality and loyalty, exists exclusively between our firm and that individual. Our role is to counsel the fiduciary on how to properly and lawfully carry out their tasks. These tasks are significant: gathering assets, paying the decedent’s final bills and taxes, accounting for all funds, and ultimately distributing the remaining property to the beneficiaries or heirs.
We advise the executor on how to perform these duties in compliance with New York law. We do not, however, represent the estate as a free-floating entity. The law does not see the “estate” as a client. It sees the person in charge of it.
The Duty to the Estate and Its Beneficiaries
If we only represent the executor, where does that leave the beneficiaries? It’s a fair question. While the executor is our client, that executor has a powerful legal obligation known as a fiduciary duty to the estate’s beneficiaries. This is the highest duty recognized by law. It requires the executor to act with undivided loyalty, prudence, and impartiality in the interest of the beneficiaries.
By advising the executor on how to properly fulfill their fiduciary duty, we indirectly protect the interests of the beneficiaries. Our counsel ensures the executor acts in accordance with the will and the law, manages assets prudently, and treats all beneficiaries fairly. For example, we guide the executor through satisfying creditor claims as outlined in the Surrogate’s Court Procedure Act, such as the deadlines specified in SCPA § 1802. Handling these claims correctly prevents improper payments and preserves the estate’s value for the beneficiaries.
Our work is to help the fiduciary be a good steward of the legacy they have been entrusted with. But the communication and legal advice flows to the fiduciary, who then has a duty to keep the beneficiaries reasonably informed.
When Conflicts Arise
The distinction becomes sharpest when a dispute arises. Let’s return to the son concerned about the home sale. If he believes his sister, the executor, is breaching her fiduciary duty—perhaps by selling the home for less than fair market value to a friend—our firm cannot represent him in a challenge against her. She is our client.
To advise him would create an immediate and impermissible conflict of interest. In such a situation, the son’s proper course of action is to retain his own independent attorney. That attorney can then formally demand an accounting from the executor, object to the sale in Surrogate’s Court, or even petition to have the executor removed for misconduct.
This is not a matter of taking sides. It is a matter of professional ethics and legal clarity. The attorney for the estate advises the fiduciary. The attorney for a beneficiary advises that beneficiary. The roles are distinct, and maintaining that separation is essential for the integrity of the administration process.
Understanding this from the beginning manages expectations and reduces frustration. Beneficiaries should know that the estate’s attorney is a resource for the executor, not a general counsel for the entire family. Executors must understand that the advice they receive is privileged and is intended to help them perform their duties—duties they owe to the very people who may be questioning their actions.
If you have been named an executor in a will, the first step is to clarify your legal obligations. We reserve time to meet with nominated fiduciaries to conduct a preliminary review of the will and outline the path through the administration process.
