Seattle, WA asked in Estate Planning for California

Q: Two weeks before he passed, my father changed the living trust from my sister being the one and only trustee,

To both of us being equal trustees. My sister was not happy with that and we had to go to litigation. Is it legal for my sister to use the same attorney that made the trustee change to represent her in the contesting of those changes? Information was withheld by my sister that had a major effect on the out come of the case. The attorney that made the changes requested by my father was well aware of the information that was being withheld. Said information had major effects on the property taxes and was deliberately withheld. It seems to me yhaty sister should have had to hire her own attorney that did not have the knowledge of the family's living trust. Is it legal for her to have done this?

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1 Lawyer Answer
Gerald Barry Dorfman
Gerald Barry Dorfman
Answered
  • Mill Valley, CA
  • Licensed in California

A: It certainly sounds like a conflict of interest for the attorney who was a witness and drafter of changes in a trust to represent a co-trustee in contesting the changes drafted by the very attorney. The question is not clear on the timeline. This is the type of issue which should be brought to the attention of the court at the outset of an action. An attorney consultation is needed to examine the details and also to ascertain whether there was a waiver of the conflict (at least as far as the contest was concerned; the ethical violation would likely not be waived.) It is also not clear whether the attorney had a duty to disclose the knowledge they had, so that is also something worth evaluating. Please note that this answer applies to California only (the question is posted in CA, but your location is listed as Seattle).

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