Q: Based on that definition and the expectations of a fiduciary, does the client have a conflict of interest?
The client in your office is 1 of the 3 children whose mother just passed away intestate, owning only 1 piece of real estate and a bank account. The client has been living with his mother in the property and claims that he should be allowed to purchase the property from the estate, but at a lesser value because he made numerous improvements to the property while living there. His two siblings disagree, want it sold on the open market with no reimbursement to your client for the improvements. None of the siblings are speaking to each other. Your client asks you to file a petition with the court to start estate proceedings and to name him as the potential personal representative.
A: I'm not sure if you are asking about New York. However, in New York, if the decent left no Will, the client can certainly petition to be appointed as Administrator. Personal representatives commonly have an interest in the estate assets that may conflict with other potential heirs. Those other heirs are free to oppose the petition. However, as an attorney, I would remind the client that his fiduciary obligation is to the estate. He will need to account for his actions and may face court scrutiny including the possibility of reversing anything he does in his own self-interest above the estate's interests and those of all distributees. He may also be on the hook for costs, attorneys' fees and penalties.
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