Five Juicy questions where the heck does property go upon death of decedent?

Governing Law Hierarchy

1. Governing Instrument = Will or Trust

   1. If it address the issue that you are trying to resolve  Will or Trust governs

   2. If Will or Trust is silent  look to Probate Code

2. Probate Code = default rules that govern if and only if the Will or Trust is silent

   1. If Will or Trust AND Probate Code are silent  look to State Law Cases

3. State Law Cases

   1. If you still cannot find the answer  look to Traditional Common Law Principles

4. Traditional Common Law Principles

5. Other Relevant Law

   1. Internal Revenue Code

   2. Constitutional Law – very rarely comes into play

6. ALWAYS READ GOVERNING DOCUMENT; ALWAYS KEEP IN MIND WHO HOLDS LEGAL TITLE- AUTHORITY TO SIGN DOCUMENT>> WILL ALWAYS BE FIDUCIARY.

Professional Responsibility/Representation issues

1. Nature of Representation: focus= distinction btwn representing someone in individual v fiduciary capacity

   1. First Q = Who is the Client in Trust/Estate context? (i.e., Who do I represent?)

   2. Second Q = Do I represent that Client in his individual capacity or fiduciary capacity? (i.e., In what capacity do I represent the client?; fiduciary? BFY?)

      1. If I represent trustee who is being sued (e.g., beneficiary suing for mismanagement) is that me representing trustee in his individual capacity? BOTH (If been representing him all along-then been representing them in fiduciary capacity, but if now being sued>sued in individual capacity)

   3. To whom do you owe a duty of care?

   4. To whom do you owe a duty of confidentiality?

2. Conflicts of Interest

   1. Actual–can’t rep. both clients b/c nature of conflict is such that>impossible for you to represent both

      1. E.g., you cannot represent A and B when A sues B, OR A&B fighting over prop OR fighting over a certain bequest (saying each is the “sole BFY”); OR when BFY is accusing FDY of inappropriate conduct

      2. FOCUS: Cannot effectively represent both cause you’d cause one to necessarily suffer

         1. Helping 1 party win would mean helping the other lose

      3. If rep 2 parties & actual conflict arises, withdraw frm both of them; CAN continue w/one only if other consents

   2. Potential – could exist whenever you represent multiple clients on a particular matter

      1. E.g., representing husband and wife on a joint estate plan; 2 ppl making partnership agreement; OR representing the same person in their FDY & BFY capacity, FDY and BFYs in same matter, or multiple BFY’s

      2. Fully-Informed Written Consent REQUIRED – before can represent both/all parties involved

3. Duties Owed to Clients

   1. Duty of Care

   2. Duty of Confidentiality

      1. Joint: no duty of confidentiality

      2. Separate: yes, duty; cannot disclose what one client tells you to the other

   3. NOTE: for estate plans, attorney for testator owes a duty to beneficiaries of the estate plan he is drafting

      1. Beneficiaries can sue on theory of

         1. Tort (malpractice)

         2. Contract (3rd party beneficiary)

   4. NOTE: attorney for fiduciary DOES NOT mean he represents the BFY (unless both written approve)

4. Example – recognize that these relationships can become very complicated very quickly

   1. You represent H & W for joint estate plan – they create an IrrT for benefit of kids with wife’s sister as trustee of trust

      1. You represent husband and wife in their individual capacity to create estate plan

      2. If wife’s sister turns to you for legal advice  represent wife’s sister in her fiduciary capacity

         1. Owe duty of care & confidentiality to fiduciary; can’t communicate info> BFY w/o fid’s approval

   2. Mother of wife dies  wife and wife’s sister are executors and beneficiaries

      1. you represent W in her fiduciary capacity as executor-estate & in her individual capacity as estate BFY

      2. You could also represent the sister in those same capacities (UNLESS conflict of interests)

   3. Trustee may need 2 lawyers if he’s acting as both TRUSTEE & BFY (one advising in FDY capacity; other in BFY) if BFY sues Trustee (cause sued in his individual capacity) Might be Prudent to get another attorney: separate advice

Estate & Trust Terminology