I'm the estate's attorney (and resident agent for the non-resident executor), and the executor improperly took estate funds. What should I do?

Plain-English summary

The inquiring attorney is the attorney of an estate and also the resident agent of the non-resident executor. The attorney asked how to proceed after the non-resident executor improperly withdrew funds from the estate.

The panel took the position that the attorney should request the executor to authorize disclosure by the attorney to interested parties, including the beneficiaries of the estate, the creditors of the estate, governmental authorities, and the probate court. If the executor refuses this request, then under Rule 1.16 of the Rhode Island Rules of Professional Conduct, the attorney should petition the court for permission to withdraw, because a conflict between the beneficiaries of the estate and the executor of the estate seems inevitable.

Currency note

This opinion was issued in 1992, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.16 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: What should I do first after the executor took estate funds?

A: Per the opinion, request the executor to authorize disclosure to interested parties, including the beneficiaries, creditors, governmental authorities, and the probate court.

Q: What if the executor refuses to authorize disclosure?

A: Per the opinion, then under Rule 1.16 the attorney should petition the court for permission to withdraw.

Q: Why did the panel point to withdrawal?

A: Per the opinion, a conflict between the beneficiaries of the estate and the executor seems inevitable.

Background and rules framework

The opinion applies Rhode Island Rule 1.16 (declining or terminating representation), corresponding to Model Rule 1.16. The panel sequenced the response: first seek the executor's authorization to disclose the improper withdrawals to the parties with an interest in the estate, and if that is refused, seek the court's leave to withdraw, given the inevitable conflict between the executor and the beneficiaries.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• RI RPC 1.16

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-65: A Guardian's Questionable Withdrawals: Seek an Explanation, Then Withdraw
• RI EAP Op. 90-05: A CPA-Attorney's Duty on Learning of a Lawyer's Fraud on Heirs
• RI EAP Op. 91-37: When a Client Refuses to Pay Medical Bills From a Settlement

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Opinion #92-9, Request #217
Issued January 14, 1992

An attorney seeks Panel advice as to appropriate conduct in a situation where the non-resident executor of an estate improperly withdrew funds from the estate. The inquirer is the attorney of the estate and the resident agent of the non-resident executor.

The Panel is of the opinion that the attorney should request the executor to authorize disclosure by the attorney to interested parties, including the beneficiaries of the estate, the creditors of the estate, governmental authorities, and the probate court. If the executor refuses this request, then under Rule 1.16 of the Rhode Island Rules of Professional Conduct, the attorney should petition the court for permission to withdraw as the attorney since a conflict between the beneficiaries of the estate and the executor of the estate seems inevitable.