BOTH ATTORNEY AND TRUSTEE: DOUBLING DOWN OR A BAD BET?

By Patrick A. Kohlmann, Esq. & Jennifer F. Scharre, Esq.*

INTRODUCTION

Estate planning attorneys routinely find themselves counseling their clients to carefully select an "appropriate" successor trustee. Occasionally, either out of admiration for the attorney or, more likely, exasperation with family members, clients ask their drafting attorney to serve as trustee. After all, who better than the drafting attorney? Most attorneys politely decline and redirect the conversation. But some may not. What are the implications of agreeing to this proposal? Is it ethical? Is a "lawyer/trustee" placed in a position of irreconcilable conflict?

This article addresses the pitfalls and cautionary tales that an attorney should be aware of before accepting a client’s proposal to act as a trustee. It also provides practitioners with a roadmap to contest such an appointment when representing the dismayed beneficiary who has learned a parent’s attorney is now serving as trustee.