The attorney and disagreements between trustee and beneficiaries

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Frequently, a trustee may retain the services of an attorney for trust administration purposes. However, sometimes advice is also obtained regarding conflicts with beneficiaries or other interested parties. This could result in a potentially undesirable situation where information thought to be confidential is passed on, or has to be passed on, to a successor trustee who may be hostile towards the original trustee.

While it is true that the attorney client privilege belongs to the client, the question in the trust context is, who is the client? Moeller v. Superior Court (1997) 16 Cal.4th 1124 gave the answer: the client is the office of the trustee, not the person currently occupying this position. The relevance of this is that confidential attorney-client communications may pass to the successor trustee.

If the transition was amicable, there’s no problem. However, if the incumbent (current) trustee is accused of malfeasance, and threatened to be replaced, confidentiality can only be safeguarded by retaining independent personal counsel with personal funds as soon as significant disagreements arise.

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