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Estate Planning and Attorney-Client Privilege: What’s the Rule? The Value?

estate planning and attorney-client privilege

When it comes to estate planning and attorney-client privilege, many don’t understand the rules or value.

Let’s take a deeper look at estate planning and attorney-client privilege.

Attorney-client privilege is a term frequently referenced in TV shows and movies. Most people understand it means attorneys cannot disclose conversations held with clients to anyone. Consequently, attorneys cannot be called to testify in courts of law.

Thus, you may wonder what value attorney-client privilege has in estate planning. When and where does it come into play?=

Understanding Attorney-Client Privilege

As I mentioned, attorney-client privilege relates to the confidentiality of information shared between a lawyer and their client. This rule also applies to an attorney’s staff, such as a legal assistant, paralegal, or co-counsel. Anything a client shares with the attorney’s staff is also privileged. In this way, a relationship founded upon honesty and trust can be developed which is essential for success.

Family Members Are Not Entitled To Privileged Information

In the case of estate planning, many questions come up about attorney-client privilege. We assure our clients everything said is protected. Furthermore, even if family members call and ask for information, it won’t be given. This is what happens most often. Once a will or estate plan has been drafted, a family member might call and ask to know the details of the will. Their efforts are in vain due to the attorney-client privilege.

Attorney-Client Privilege Extends Beyond Death

Once a client passes away, family members, heirs and beneficiaries often want to know why the client made certain decisions about how their assets were disbursed. That is privileged information that the attorney is not at liberty to discuss. Neither attorneys, nor their staff members are at liberty to share secrets, disclose legal advice, or gossip about any sensitive client information.

Exceptions to Attorney-Client Privilege In Estate Planning

There are a few exceptions, as it relates to attorney-client privilege after the client’s death. First, an attorney can repeat information to a client’s family and loved ones if the client has given the attorney permission to do so. For example, if a client creates a trust for a specific purpose; the client may give the attorney permission to talk to the trust beneficiary about why the trust was formed and what the client hoped to achieve.

Also, if a client is concerned about sharing the reasoning behind their estate planning decisions, they might consider leaving a Letter of Instruction, sometimes known as an ethical will or legacy letter, with their estate planning documents. The Letter of Instruction is a non-legal document through which a client can share personal stories and personally communicate hopes and values, and/or explain the intentions of the estate plan.

A second exception is waiving attorney-client privilege by having a non-client in the room while the attorney is sharing legal advice with their client. Because the conversation is not strictly between the attorney and the client, the information is no longer confidential and, therefore, not protected by attorney-client privilege.

A third exception relates to competency. If someone is challenging a will or other estate document based on the client’s capacity at the time of signing, the attorney can speak to the client’s competency. However, he or she cannot share the details of their conversations. The attorney can only talk about whether the client was competent in drafting the estate documents.

Are you ready to create an estate plan with attorney-client privilege?

If so, you can be assured that anything you share is protected. This includes info about your assets, distribution of assets and contents of the documents we draw up. All will be protected under attorney-client privilege unless you decide otherwise.

Give my office a call today at 404-370-0696.


Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!

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