Can a Third Party Pay an Executor’s Retainer in North Carolina Probate?
Detailed Answer
When you hire an attorney to guide an executor (also called a personal representative) through probate, the attorney will typically require a retainer fee. Under North Carolina law, that retainer belongs to the executor as the client. But can a family member or friend pay the fee on the executor’s behalf? The short answer is yes, with the right safeguards.
1. Identifying the Client
Rule 1.0 of the North Carolina Rules of Professional Conduct defines the “client” as the person or entity that retains the lawyer’s services. In a probate case, the executor acting in a personal capacity (or as representative of the estate) is the client. That means the attorney holds any retainer in trust for the executor or estate, not for whoever provides the funds.
2. Trust Account Requirements
North Carolina General Statute § 84-27 requires attorneys to deposit client funds, including retainers, into a trust account. These funds remain the client’s property until the lawyer applies them to fees or reimbursable expenses. You can review the statute here: N.C. Gen. Stat. § 84-27.
3. Third-Party Payments
Rule 1.8(f) of the North Carolina Rules of Professional Conduct permits a lawyer to accept payment from someone other than the client if:
- The executor gives informed consent;
- The third party’s interest does not interfere with the lawyer’s judgment or the executor’s freedom to act;
- The lawyer keeps all client information confidential.
In practice, you should sign a short agreement confirming that the executor remains the client, that you have no right to control the retainer, and that the attorney won’t share privileged communications.
4. Name on the Retainer Check
The name on your check or wire transfer matters less than properly accounting for the funds. The attorney will record the payment in the executor’s trust ledger. You can send the check in your name or the executor’s name, but the trust account entry must show the executor as the owner of the funds.
Key Takeaways
- The executor (personal representative) is always the attorney’s client in a probate case.
- North Carolina lawyers must deposit retainers into a trust account under N.C. Gen. Stat. § 84-27.
- Under Rule 1.8(f) of the North Carolina Rules of Professional Conduct, a third party may pay the retainer with informed executor consent and no interference in decision-making.
- The retainer’s ledger must list the executor as the client, regardless of whose name appears on the check.
- Best practice: document in writing who the client is and who provides the funds to avoid confusion.
Paying the retainer on your loved one’s behalf can ease the financial burden during a difficult time. Just keep these rules in mind so the attorney can apply funds correctly and preserve the executor’s rights.
If you have questions about paying retainers or need guidance through the probate process, contact Pierce Law Group. Our attorneys have years of experience handling North Carolina probate matters. Email us at intake@piercelaw.com or call (919) 341-7055 today for a consultation.
