These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
 Back to main menu
  Topic: 61 - Lawyers Acting as Executors
LEO NumTopicsSummaryDate
1315

printPrint
3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A decedent died after transferring accounts and placing items in a safety deposit box. Plaintiff challenges the transfer and disputes ownership of the safety deposit box's contents. The plaintiff has sued both administrators -- one of which is a lawyer. The same firm cannot represent both administrators if there is a dispute between them about the transfer or the ownership of the box's contents. The lawyer-administrator's partner may undertake the representation even if the lawyer must be a witness, as long as the issues do not relate to the firm or its legal work, and provided that the lawyer does not intend to perform any advocacy functions in the future. 2/15/1990
1617

printPrint
60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

67-Lawyers Acting as Guardians Ad Litem"

76-Trust and Estate Lawyers

A lawyer acting as an executor, trustee, guardian, attorney-in-fact or other fiduciary is bound by the Code. In discussing a lawyer's duty to render accountings, the Bar concludes that the duty varies with the type of fiduciary relationship. However, the duty of accounting may not be waived. 2/17/1995
1387

printPrint
4-Witness-Advocate Rule

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer acting as executor or trustee could hire the lawyer's own law firm to represent an estate as long as the co-fiduciaries consented. However, the firm would have to withdraw if the executor/trustee had to be a witness in any later proceedings (unless the testimony involved a matter of formality or an uncontested matter, and would not be rebutted by another party). [Under Rule 3.7(c), this disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest.]11/30/1990
1534

printPrint
16-Lawyer's Personal Interests

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may not prepare a trust for a godparent (not a blood relative) under which the lawyer is an ultimate beneficiary, even if the lawyer and the godmother "maintained a mother/daughter-like relationship for nearly thirty years." However, it is not per se improper for the lawyer to serve as executor or trustee. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.]8/12/1993
0411

printPrint
16-Lawyer's Personal Interests

44-Conflicts - Miscellaneous

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may provide free will-writing services to members of a religious organization. The services will create an attorney-client relationship in which the lawyer owes a duty solely to the non-paying client. Although not unethical in every case, it probably would be improper for the lawyer to be named as trustee or executor in such a will. 4/6/1981
0735

printPrint
51-Government Attorneys

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may serve as co-executor of an estate and a full-time Assistant Commonwealth's Attorney. 11/1/1985
1720

printPrint
2-Adversity to Former Clients

58-Real Estate Lawyers

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer who acted as co-administrator of an estate did not represent the estate or the beneficiaries, but rather "was his own client for practical purposes." After withdrawing as administrator, the lawyer could not represent a beneficiary's executrix in litigation involving estate assets (unless the successor administrator consented) because the representation would be adverse to the estate and was "substantially related" to the lawyer's previous representation of himself or herself as administrator ("substantial relatedness between the matters in a former representation and a current representation is a fact-specific inquiry from case to case . . . in previous opinions, substantial relatedness depended upon whether the same parties, the same subject matter, or the same issues were present. The committee referred to cases to find substantial relatedness in terms of the matters or the issues being essentially the same, arising from substantially the same facts, being by-products of the same transaction, or entailing a virtual congruence of issues of patently clear relationship in subject matter.").On the other hand, the lawyer could represent the beneficiary's executrix in litigation over real estate which was never part of the probate estate and therefore not within the scope of the lawyer's role as administrator. There may also be fiduciary duties or statutes that would apply. 12/2/1998
1159

printPrint
9-Government Lawyer Conflicts

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

An Assistant United States Attorney may act as executor for an estate naming the United States as sole beneficiary despite being employed by the beneficiary, because a private lawyer will represent the estate and the Assistant United States Attorney will therefore act as executor and not counsel. 1/4/1989
1358

printPrint
16-Lawyer's Personal Interests

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

Lawyers drafting a will or trust agreement must be very careful in naming themselves as executors or trustees. It is likely to be improper if the lawyer has not previously represented the client. At a minimum, the lawyer has a duty to advise the client of fees that would be charged by other executors or trustees. If the instrument requires that the estate or trust hire the lawyer's firm for legal services, the client must consent after full disclosure. If a lawyer acting as a fiduciary commits an act that could be disciplined had the relationship been that of an attorney and client, the lawyer-fiduciary may be disciplined by the Bar. 10/1/1990
ABA-426

printPrint
18-Consent and Prospective Waivers

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

75-Representing Estates and Executors

76-Trust and Estate Lawyers

Lawyers may act as personal representatives or trustees under documents the lawyer prepares, but: must obtain a written consent if the lawyer's judgment would be significantly impaired; must advise the client about how the lawyer's compensation will be calculated and whether it is subject to some limits or court approval. Lawyers may also hire their own firms to perform legal work in the administration of the trust or estate, in which case the lawyers generally represent themselves, and not the beneficiaries or the trust or estate as an entity. Even with consent, a lawyer serving as a fiduciary may not take positions adverse to the interests of a beneficiary or the entity. Lawyers acting as fiduciaries generally should not represent beneficiaries in unrelated matters.5/31/2002
1515

printPrint
8-Bills and Fees

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

60-Lawyers Acting as Trustees

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

83-Solicitation

This LEO outlines the principle governing a lawyer acting as executor or trustee: a pre-existing attorney-client relationship is not necessary, but is one factor showing the propriety of the lawyer's selection. The lawyer must fully disclose the fees that will be charged (preferably in writing) and "has a duty to suggest that the client investigate potential fees of others who might otherwise provide such services." A lawyer acting as executor or trustee may hire the lawyer's own law firm to represent him or her as long as there is full disclosure (including "the general compensation to be paid to the law firm") and consent (if the client is already dead, the beneficiaries can consent). A lawyer acting as a fiduciary is governed by the Code. A lawyer may solicit designation as a fiduciary as long as there is no overreaching or fraud. (Approved by the Supreme Court 2/1/94)2/1/1994

Copyright 2000, Thomas E. Spahn