Attorney Client Privilege In Estate Planning Matters

In many ways, estate planning feels like a family event. Someone is creating an estate plan to leave assets and property to other family members. Family members may have been the ones to encourage the person creating the estate plan, to get to an estate planning attorney and get it done in the first place. For older people, who may rely on kids or other family members for advice or guidance, they may have all spoken about the estate plan in the past.

Excluding Close Family

But the family of the person making the estate plan is often surprised, when the estate planning attorney will not speak to the family, and when the family members cannot sit in on meetings between the client and the estate planning attorney.

Family may be dismayed when they encourage dad to go to an estate planning attorney, they drive him there, they have dad’s paperwork…and then they’re told to wait in the attorney’s waiting room. That’s not to be mean—that’s only to preserve the attorney client privilege that exists between the creator of the estate plan, and the estate planning lawyer.

Although the family may think of the estate plan as a family project, or something they all have involvement or interest in, the fact remains that the only actual client for the estate planning attorney is the person making the will, trust, or other documents.

Can You Consent?

It is possible to consent to have family present in the meeting with the lawyer. But that usually must be more than a simple consent. The estate planning attorney will need to meet with the client, and only the client, to ascertain the client’s capacity to make this decision rationally, knowingly, and of the person’s own free will and volition.

If the attorneys do feel like the client is not acting of his or her own free will, or is not competent to make the decision to share information with family, the attorneys can deny family from being included in attorney client meetings and communications.

After the Client Passes Away

This problem also arises, after the person making the estate plan, has passed away. Families often will call the estate planning attorney, thinking that because they are next of kin, or perhaps a spouse, that the attorney can openly speak to them.

But that’s not the case—the attorney still owes a duty of confidentiality to the now-deceased client. So, while the attorney may be able to provide you some information if it is not related to direct communication between the former client and the attorney, no direct communication can be shared.

Why Confidentiality?

Preserving confidentiality may, at first, seem insulting to an excluded family. But it’s for your own good; family involvement in estate planning matters can lead to claims of undue influence or coercion, which can jeopardize everybody’s inheritances and the wishes of the deceased.

We put our clients first and foremost. Call the Torrance probate will and estate attorneys at Samuel Ford Law today to start working on your estate plan.

Source:

law.com/therecorder/2023/02/14/dead-men-tell-no-tale-but-their-attorney-may-have-to-overlooked-exceptions-to-privilege-in-california/