Receiving a subpoena is never routine—especially for estate planning attorneys who suddenly find themselves pulled into litigation involving a former client’s estate. What may feel like a simple request for documents can quickly evolve into a multi-hour deposition, privilege disputes, and, in extreme cases, serious professional exposure.
In a recent conversation, Amy L. Gostanian, Managing Partner of The Estate Lawyers, sat down with Bradley R. Kirk, Managing Partner of Legal Strategy, to discuss what estate planners should expect—and how to protect themselves—when served with a subpoena.
Bradley draws on decades of litigation experience and having deposed 20–30 estate planning attorneys to explain what litigators are really looking for and where estate planners often get caught off guard.
The First Thing Litigators Want: Your Entire File
When an estate planning attorney is subpoenaed, litigators almost always start by demanding the entire client file. This is not incidental. Reviewing the file is how litigators shape their deposition strategy and identify weaknesses in the estate plan.
Key materials frequently scrutinized include:
- Attorney notes from client meetings
- Intake questionnaires or asset worksheets
- Drafts of estate planning documents
- Correspondence with the client or third parties
Attorney notes, in particular, are often central to disputes involving intent, capacity, and undue influence.
Attorney-Client Privilege Is Not Absolute After Death
One of the biggest surprises for estate planning attorneys is that attorney-client privilege may not apply in many post-death litigation scenarios.
Under California law, there are Evidence Code provisions that significantly limit—or eliminate—privilege when:
- The intent of the decedent is at issue
- The decedent’s competence is challenged
- The validity of transfers or estate documents is disputed
This means portions of your file that you assume are protected may, in fact, be discoverable. Determining what must be produced often requires careful legal analysis and, in some cases, court involvement.
What Should You Produce—and What Should You Withhold?
There is no one-size-fits-all answer. However, the safest approach is often the least popular one:
retain experienced counsel.
An attorney familiar with estate litigation and privilege issues can:
- Review your file for privileged and non-privileged materials
- Assert appropriate objections
- Negotiate with opposing counsel
- Seek court guidance when disputes arise
While many estate planners hesitate to incur legal fees, failing to do so can result in far greater professional and legal risk.
What to Expect in the Deposition
Depositions of estate planning attorneys typically last three to four hours, sometimes longer. Litigators often follow a structured approach, beginning with the attorney’s background and credentials before turning to the substance of the estate plan.
Expect detailed questioning about:
- Your education, experience, and specialization
- How frequently you prepare estate plans
- Every interaction with the client
- The client’s stated intent
- How documents were prepared, executed, and notarized
Litigators representing challengers to the estate plan will often attempt to undermine both the documents and the drafting attorney’s credibility.
Small Details Can Create Big Problems
Inconsistencies—such as mismatched signing dates, notary acknowledgments on different days, or later-added pages—can become focal points in a deposition. If an attorney cannot clearly and confidently explain these issues, their credibility may be damaged, sometimes irreparably.
Preparation is critical. Reviewing your file thoroughly before any deposition is not optional—it is essential.
Why Most Estate Planners Are Unrepresented—and Why That’s Risky
Despite the stakes, only about 10% of estate planning attorneys appear at depositions with their own counsel. Time, cost, and inconvenience often drive this decision.
However, Bradley shared real-world examples where depositions escalated into discussions of court order violations and potential contempt exposure. In those situations, unrepresented attorneys were placed in extremely vulnerable positions.
The Bottom Line
If you are an estate planning attorney who receives a subpoena:
- Take it seriously
- Understand that privilege may be limited
- Carefully evaluate what you produce
- Prepare extensively for any deposition
- Strongly consider retaining experienced counsel
A subpoena is not just a request for documents—it is an entry point into litigation that can directly affect your professional reputation and legal exposure.
🎥 Watch the full conversation to hear firsthand insights from both the drafting and litigation perspectives.