Plant City, FL asked in Probate for California

Q: The attorney who wrote my parents trust told me he could not discuss the trust with me. Is that right?

He is no longer trust attorney. I wanted to clarify my parents intentions regarding one section in the trust

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1 Lawyer Answer
David L. Crockett
David L. Crockett
  • Probate Lawyer
  • Newport Beach, CA
  • Licensed in California

A: That is a good question and one that I see often. While your parents are alive, the attorney who prepared the trust is their attorney and it is improper and unethical for the attorney to discuss or disclose the trust to anyone except your parents which are his clients. That is what is known as the attorney-client privilege. If your parents give written permission for the attorney to speak with you or provide trust copies then that would be permissible.

Even if the attorney is no longer the trust attorney for your parents, he is still bound by the attorney-client privilege and cannot discuss or disclose the trust without consent from your parents.

If one of your parents is deceased, the privilege still exists and you would need the consent of the parent which is still alive to have the attorney disclose or discuss the trust with you.

If both of your parents are deceased then the client becomes the successor trustee of the trust. The attorney who wrote the trust can then discuss the trust and provide copies to the successor trustee, but not anyone else. Trusts typically have one successor trustee and more than one trust beneficiary. Only the successor trustee has a legal right to confer with and obtain copies of trust documents from the attorney who prepared the trust, at least initially. In the event of litigation over the trust, the attorney who drafted the trust can be subpoenaed to explain the trust and the trustor's intentions.

A properly drawn trust should not require any clarification as to your parent's intentions. The trust document is the legal expression of their intentions and it must be followed according to law. If you have a copy of the trust, you should have an attorney review the trust on your behalf and explain what it means and what the expressed intentions are. If an experienced trust attorney cannot say definitely what the section of the trust means then you maybe have a situation where a trust lawsuit/petition will need to be filed to have a Judge make a legal interpretation. Usually, way before anyone even thinks about lawsuits however, attorneys for conflicting sides of the question have discussions about the trust interpretation and what should be done to follow your parent's wishes.

I hope this explanation of the ground rules in this area helps.

David L. Crockett, attorney/CPA/broker.

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