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Can a laywer ethically write a trust for his parents?

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quincy

Senior Member
The "preview" feature on this site does not always work properly for some unknown reason and will delete the post instead of post the post.

You can use the "edit post" feature or the "reply to thread" feature to post your question.
 

tranquility

Senior Member
Don't forget to include the state! Ethics are very state related. Also, you might want to say why you want to know. For example, just because something might be unethical does not mean the result is not legal. Or, that someone else has an right to complain.
 

tbutta

Junior Member
I'm sorry, I am new to this and I did have more explaination but it didn't post....

My state is VA. My brother is a lawyer. A few years ago my parents asked him to write their trust (of which he was a joint beneficiary along with myself and my sister). My sister and I were unaware that they wrote it up and were of course clueless as to the contents. Once I learned about it, I felt like there was a conflict of interest there for him to write it. I felt like when he was asked to write it he should have realized that he would be signing the document as a lawyer, but he was his own client as well (well, his parents were clients, but certainly he had opportunity to manipulate if he wanted to). What has happened since then has opened this big can of worms for my family. My dad passed away and my mom asked my brother to come move into her house ("take his inheritance early"). The purpose of this according to her was that my brother was going to get the house eventually anyway (he would eventually buy my sister and I out) but that she didn't want to be alone as well. He has been in this home for a few years now. The title is still in mom's name but he lives there making improvements with (apparently) the money he doesn't spend now on a mortgage since he sold his old home. He apparently tried to make things even by paying the rest of mom's mortgage on the house (about 100k), and of course he pays the taxes on the house and keeps up with repairs etc (how benevolent). So maybe things are fair, but basically I asked my mom to hire a 3rd party lawyer to look at the trust and what transpired since and she refused (because my brother refused and... "can't he be trusted?". It is a long strange story and it is my mom's money and trust to do with as she chooses (she thinks that everything will be equal but it won't), but basically all I am seeking to find is somewhere where it is written that a lawyer shouldn't represent himself when he is a beneficiary of an estate. Thanks.
 

Zigner

Senior Member, Non-Attorney
My state is VA. My brother is a lawyer. A few years ago my parents asked him to write their trust (of which he was a joint beneficiary along with myself and my sister). My sister and I were unaware that they wrote it up and were of course clueless as to the contents. Once I learned about it, I felt like there was a conflict of interest there for him to write it. I felt like when he was asked to write it he should have realized that he would be signing the document as a lawyer, but he was his own client as well (well, his parents were clients, but certainly he had opportunity to manipulate if he wanted to). What has happened since then has opened this big can of worms for my family. My dad passed away and my mom asked my brother to come move into her house ("take his inheritance early"). The purpose of this according to her was that my brother was going to get the house eventually anyway (he would eventually buy my sister and I out) but that she didn't want to be alone as well. He has been in this home for a few years now. The title is still in mom's name but he lives there making improvements with (apparently) the money he doesn't spend now on a mortgage since he sold his old home. He apparently tried to make things even by paying the rest of mom's mortgage on the house (about 100k), and of course he pays the taxes on the house and keeps up with repairs etc (how benevolent). So maybe things are fair, but basically I asked my mom to hire a 3rd party lawyer to look at the trust and what transpired since and she refused (because my brother refused and... "can't he be trusted?". It is a long strange story and it is my mom's money and trust to do with as she chooses (she thinks that everything will be equal but it won't), but basically all I am seeking to find is somewhere where it is written that a lawyer shouldn't represent himself when he is a beneficiary of an estate. Thanks.
What about the trust do you think was improper? I understand that you think that it's not fair that your brother is held in higher regard than you feel you are, but that doesn't make the trust improper.
 

tbutta

Junior Member
I am not sure that it is improper or not. I do think that the fact that he received an early inheritance doesn't really affect my question, since it isn't even part of what was written in the trust - instead it only serves to illustrate that it is a strange situation. I just don't understand if there was any sort of ethics breach when he agreed to write a will (of which he is a joint beneficiary with his sisters). I am not really asking whether things are going to work out fair or even. Our parents asked him to do it. They wouldn't know if there is an issue there. I just wonder if most lawyers would take on that task (since it puts them sort of in a compromising situation where, while they may not take advantage while writing it up, the opportunity is there.) Just asking ethically. I'm biased I know, so I just hoped to see what others thought/knew. Thanks
 

Zigner

Senior Member, Non-Attorney
I guess the question I'm asking is...why does it matter? Are you just hoping to get your brother in trouble because mom is nicer to him? Really?
 

tranquility

Senior Member
I am not sure that it is improper or not. I do think that the fact that he received an early inheritance doesn't really affect my question, since it isn't even part of what was written in the trust - instead it only serves to illustrate that it is a strange situation. I just don't understand if there was any sort of ethics breach when he agreed to write a will (of which he is a joint beneficiary with his sisters). I am not really asking whether things are going to work out fair or even. Our parents asked him to do it. They wouldn't know if there is an issue there. I just wonder if most lawyers would take on that task (since it puts them sort of in a compromising situation where, while they may not take advantage while writing it up, the opportunity is there.) Just asking ethically. I'm biased I know, so I just hoped to see what others thought/knew. Thanks
I think the fact mom is alive and seems to accept brother doing the work is going to be key here. I'm sure I could find more if I looked harder, but deadlines loom and I can only supply this opinion that seems to explain some of the issues.

http://www.vacle.org/opinions/1534.htm

A key portion there discusses the issues of if a godchild can prepare an instrument and be an executor to that instrument where he is the eventual beneficiary. (Emphasis mine)
You have asked the committee to opine whether, under the facts of
the inquiry, (1) the attorney's preparation of the will was a
violation of the Code of Professional Responsibility and, if so,
what remedial action may be taken by the attorney; and (2)
whether the attorney's service as trustee and/or executor is an
impermissible conflict of interest and, if so, what remedial
action may be taken by the attorney.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 5-101(A) which states that a lawyer shall
not accept employment if the exercise of his professional
judgment on behalf of his client may be affected by his own
financial, business, property, or personal interests, except with
the consent of his client after full and adequate disclosure
under the circumstances; and 5-104(B) which provides that a
lawyer shall not prepare an instrument giving the lawyer or a
member of the lawyer's family any gift from a client, including a
testamentary gift, except where the client is a relative of the
donee
.
 

TrustUser

Senior Member
i think that in any state, there is room for complaint, in this case.

because the benes were treated differently.

any lawyer would have understood this.

so one would wonder why a bene-lawyer would continue with drawing up the trust, when another lawyer could have been used ?

i think it is extremely reasonable to suspect some manipulation.
 

tbutta

Junior Member
thank you so much for the replies! I am not trying to get my brother in trouble. I probably should have mentioned that I was really trying to help my mom see that to be truly impartial to all 3 kids that a 3rd party should be sought after to look at the existing trust and account for all the transactions and events that took place after the trust was written. I can only surmise that my brother would bristle at the thought of another lawyer looking at this (possibly his) mess. So it probably will go nowhere. But, it would be nice for my mom to see that he probably shouldn't have taken the job in the first place. What I really want is no contention once the trust goes into effect. I think the only thing I can do to make that happen when the time comes is to sit back and let it play out. Again...thank you...
 

Zigner

Senior Member, Non-Attorney
I have seen no claims of any beneficiary being treated differently than any other beneficiary under the trust. Of course, it's obvious that one child is being treated differently by the parent...but that doesn't mean the trust allows it.
 

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