In California lawyers can only represent trustees not a trust

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This may surprise because you often even hear even California lawyers say “I am the attorney for the trust”, what they should say is “I am the attorney for the trustee”. They cannot be attorneys to the trust because in California a trust is not a legal entity (legal person) that can as such retain legal counsel. Instead, a trust is “a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)” (Black’s Law Dictionary 10th ed. 2014).

“At least in so far as private express trusts are concerned, the client under California law is the fiduciary or fiduciaries and not the estate or trust as a whole, and not a fiduciary and a beneficiaries as joint clients. This rule is materially different than the law in many states and federal law under ERISA.” Shaver TW (Ed.). Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel: Fourth Edition. California Lawyers Association, Trusts and Estates Section, 2020, p. 161.

Why is this important? Chiefly because it can give rise to confusion where the beneficiaries assume that they are being represented by the “attorney for the trust” who in fact typically only represents the trustee. For in depth treatment of this subject see There Is No Such Thing as “The Attorney for the Trust”

This is in distinction to the so called entity rule when representing a corporation or other legal entity (but not a trust):

A lawyer employed or retained by an organization shall conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized directors, officers, employees, members, shareholders, or other constituents overseeing the particular engagement.” CA Rules of Professional Conduct Rule 1.13 Organization as Client.

But again, a trust is not a legal entity but a type of property interest. So the entity rule does not apply, at least not in California.

An attorney representing the trustee represents the trustee in her capacity as trustee, not as an individual. If there is a dispute between the trustee and the beneficiaries and the trustee is replaced, confidential information shared between the former trustee and her lawyer is not protected vis-a-vis the replacement trustee. See There are disagreements and the trustee fears being replaced.

For completeness sake, it needs to be mentioned that the IRS considers a trust as a “taxable entity”. In conclusion, it is always important to pay attention to the nuances: What is an entity or not may depend on the context. For a text context see also: What’s the difference between a grantor and non-grantor trust?

What’s the difference between a grantor and non-grantor trust?

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