10 Ways to Lawsuit-Proof Your Estate #6

FORBES Magazine online blog, The Best Revenge – by Ashlea Ebeling, has an excellent article called 10 Ways to Lawsuit Proof Your Estate that covers a lot of the advice that we at Ainer & Fraker, LLP give to our clients.

Please read the entire article by clicking on the following link: 10 Ways to Lawsuit-Proof Your Estate.

Today, we examine Part 6 – Get your own lawyer

It’s common for one lawyer to do the estate planning documents for a couple and perhaps even more family members. But if the lawyer represents someone other than the testator (the person writing the will), trouble can result. Say the law[yer] represents both the testator and a second spouse—children from a first marriage could cry foul and say that the lawyer was doing the secret bidding of the second spouse and not what their own deceased mom or dad wanted.

~ Ashlea Ebeling, 10 Ways to Lawsuit Proof Your Estate

Ainer & Fraker, LLP Analysis

Carefully defining who is the client is one of the most important tasks of any estate planning attorney.

It may seem simple at first, but many times circumstances change during the course of the representation – or in the life of the family – making it difficult to ascertain who truly must be represented by the attorney.

Consider the following circumstance:  Mother and Father are in their late 70’s, but have full mental capacity to execute legal documents.  Because they are living on fixed income, Oldest Child pays the attorney for an estate plan.

Mom and Dad are fine with Oldest Child serving as Trustee and Executor.  However, once Mom and Dad begin to show signs of dementia, Younger Siblings challenge the decision to have Oldest Child serve as Trustee.

It is common in many cases for the drafting attorney to continue representing Trustee, since that was Mom and Dad’s wishes.   However, if there is a conflict between the children as Beneficiaries, the drafting attorney may become disqualified due to the Conflict of Interest.

Also common is the Conflict of Interest that arises from blended families.

Husband and Wife are married for 20 years before Wife dies.  Husband remarries Second Wife and they remain married for another 10 years before Husband dies.

Husband had sought to leave his part of the Estate to his children, but wanted Second Wife to be his Trustee and Executor.

In this case, the original drafting attorney will find it difficult to avoid a Conflict of Interest, because the needs of his Clients (Husband and Second Wife) are very different.

If not managed carefully, these types of representations can lead to family friction and potentially litigation.

Careful determination of “who is the client”, combined with the appropriate Conflict Waivers, are required if the client seeks joint representation in a case like this.

Better yet, each spouse should ideally have their own independent counsel, to avoid litigation down the road.