When couples consult a lawyer about a prenuptial agreement, they are usually surprised to hear that the lawyer can only represent one side and not both. Spouses and partners are usually even more surprised to hear that the lawyer may need to identify and clarify who he/she represents in Estate Planning. Oftentimes when there are shared responsibilities in the household, only one party will want to appear for the meeting to determine the estate plan. This is not advisable. Ideally, both spouses should meet with the attorney so that the information they receive can be discussed and decisions can be made based on the same information.
Married people have conflicting opinions you ask? How could that be? One partner or spouse may think that he or she has determined who the appointed representatives are and fails to fully discuss this decision with the other partner or spouse. At that point, the representative chosen by one spouse may be the very last person the other spouse would have chosen for that role.
Another possible conflict could be how the estate should be distributed. For example, the husband may wish to leave an investment property he owned to one of his siblings. During the marriage, he pays for the mortgage of the investment property out of joint funds. Now the wife has an argument that a portion of the investment property is marital property and not the Husbands to give away. The wife now has an equitable interest in the item. The husband cannot bequeath one hundred percent of this item to his beneficiaries since he doesnt own one hundred percent. Then it becomes a matter for the probate judge to decide what part of husbands interest in the item is permitted to go to the sibling and what part is not included in the decedents estate. This is an easily preventable problem through open communication between the parties.
Second spouses with children from a prior relationship will oftentimes have inherent conflicts in that the wife may leave property to her current spouse. In that case, as opposed to when her spouse is the child(ren)s father, there is a conflict. The wife and husband may leave all property to each other with no back up beneficiary. If the wife passes first, the husbands sole intestate heirs might be his own children from a prior relationship. Without careful drafting, all of Wifes property could go to Husbands children from a prior relationship and none to her own children.
The State Bar of Georgias Rule 1.7 Conflict of Interest Rule Number Thirteen provides specifically, Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved.
Planning together is especially important. There is often a great deal of discussion and negotiation in getting to the decision of who to appoint as an executor, or guardian, and if necessary, trustee. If you are meeting with an attorney to discuss these issues, take advantage of that time to ask the questions that may be important to you in making each decision. Oftentimes, the attorney will be able to provide information about the powers and responsibilities of each representative that may even persuade you to choose a certain person over another.
This article was written by Dara Berger. Mrs. Berger is an estate planning and immigration attorney in Atlanta, who occasionally contributes to this blog. She can be reached at dara@dlb-legal.com.