This addresses the ethical challenges and intrafamilial conflicts that estate attorneys frequently encounter in both planning and administration. These are strategies for identifying, understanding, and ethically managing conflicts that may arise among family members during the estate process.
Attorneys learn how to spot potential conflicts early, assess their ethical implications, and determine whether they are waivable or require withdrawal. The course also explores the proper use of conflict waivers and how to navigate tricky family dynamics professionally and legally.
Practical steps and Pro-Tips:
- Identify Common Ethical Conflicts in Estate Planning and Administration
Common Conflict Scenarios:
- Representing multiple family members (e.g., parents and adult children, siblings)
- Perceived or actual favoritism among heirs
- Undue influence or mental incapacity concerns
- Serving as both legal advisor and fiduciary (e.g., executor or trustee)
- Disputes between co-trustees or co-executors
- Drafting documents for blended families or estranged relatives
Tips:
- Always ask: “Who is the client?” and clarify in writing.
- Be alert to divergent interests, even if all parties appear cooperative.
- Use conflict check systems regularly to screen for potential issues.
- Understand How These Conflicts Arise
Common Sources:
- Family dynamics: long-standing tensions, stepfamilies, disinheritance
- Dual representation: when one attorney represents multiple related parties
- Gift giving or unequal distributions: leading to resentment or suspicion
- Mental incapacity or vulnerability of the client during planning
- Changes to estate plans near death (often questioned later)
Key Insight:
- Conflicts often don’t appear at the time of planning—they emerge after death during administration.
- Clients may minimize or conceal tensions, so ask probing questions about relationships and expectations.
- Manage or Mitigate Conflicts Effectively
Step-by-Step:
- Spot the Conflict Early
- Ask about the client’s family relationships and past disputes.
- Review whether multiple parties have adverse or competing interests.
- Decide If the Conflict Is Waivable
- Some conflicts (e.g., loyalty to multiple heirs) may be waivable with informed consent.
- Others (e.g., direct adversity) are non-waivable under professional rules.
- Provide Full Disclosure to All Parties
- Explain the risks and consequences of joint representation clearly and in plain language.
- Obtain Written Conflict Waivers
- Include:
- Nature of the conflict
- Potential consequences
- Clients’ acknowledgment and consent
- Include:
- Consider Independent Counsel When Appropriate
- If a waiver isn’t enough or parties become hostile, recommend that one or more parties seek separate legal advice.
- Document Everything
- Keep detailed notes and signed waivers in the file.
- If withdrawing, do so in writing and in accordance with professional conduct rules.
Pro Tips:
- Use engagement letters that clarify the scope of representation and who the attorney represents.
- Stay neutral during administration—especially when advising executors who are also beneficiaries.
- Educate clients early about potential conflicts to prevent issues later.