Estate Planner’s Duty of Loyalty
By Cody Ross, Esq., Intern for
AnnMichelle G. Hart, Esq.
April 30, 2021
It is only natural for someone to have questions after the passing of a loved one. It is one of the most confusing and difficult times that a person can experience. Most people will turn to the attorney that their loved one hired to create their will with questions. Confusingly, that attorney will often not be able to provide answers to those questions. This is because of the strict rules that attorneys are subject to.
Whenever a client hires an attorney, that attorney works for the client. Under both national and Washington rules regarding the conduct of an attorney, the client is the one with the power to guide the legal services. Attorneys are required to put the interests of their client above the interests of any other person. This becomes an issue during estate administration because two different beneficiaries, with competing interests in the will, may come to the attorney seeking advice on how to maximize their share. Because the attorney was hired by the now deceased client, the attorney is required to still uphold that client’s interests. This means that, for example, the attorney cannot advise any beneficiary on how to administer the will or whether to challenge it or not.
On top of the attorney’s requirement to hold their client’s interests as the highest, attorneys are also not permitted to have any conflicts of interests related to their client. This normally means that the attorney cannot also represent someone that has an interest counter to the original client. An example in estate planning would be representing a husband and wife that disagree on how to divide up their marital assets after death. Because the husband and wife have different interests and beliefs on how the property should be used, they are adverse, and the attorney cannot represent both of them.
An exception to the conflicts of interest rule is that an attorney can represent both parties of the conflict if both parties provide informed consent to allow the attorney to represent both of them. The attorney must also properly believe that neither party will be harmed by the multiple representation. Going back to the husband and wife, both could give informed consent and waive the conflict of interest and allow the attorney to represent both spouses in the creating of the estate plan. As long as the attorney honestly believes that he can help both parties without harming the other, it will be permitted.
The husband and wife example illustrates the main problem that arises in estate planning when it comes to conflicts of interests, multiple family members. Because family members will often have different ownership interests in, and beliefs on how to use certain property, they can be adverse to each other and cause a conflict of interest. This is why an attorney hired to write a person’s will may deny answering any questions about a certain person’s share or how to best administer the estate, it would create a conflict of interest. In that instance, because the initial client is dead, it would be impossible to get informed consent and the attorney can become subject to discipline from their state bar association.
The two main ways that attorneys avoid conflicts of interest in estate planning are to explicitly state who the client is in the initial agreement regarding representation and referring conflicting family members to independent counsel. By stating explicitly who the client is when the attorney-client relationship is formed by signing an engagement letter, the attorney to clearly understand the scope of their representation (i.e., writing a will for only one person) and will avoid other family members from trying to hire the attorney that would cause a conflict.
By having family members seek their own attorneys, it easily avoids the conflicts of interest problem. With each family member represented by their own attorney, there are not conflicts of interest. This can even be done for the husband and wife example. If either, or both, spouse has children from before the marriage, they may disagree on who should be the executor of the estate or what share each child can get. By having their own counsel, each spouse can clearly state what they want without having to worry about causing a conflict of interest and jeopardizing their attorney-client relationship.
Because estate planning and administration already comes at difficult times, it is important to avoid conflicts of interest. Not only will it make it harder to plan and administer an estate, but it can also lead to battles within a family. If you have any questions about how your loved one’s estate is being handled, it is best to seek your own attorney rather than to speak with your loved one’s attorney.