For estate planning attorneys, few questions create more uncertainty during litigation than who actually holds the attorney-client privilege. The answer determines who can authorize disclosure of confidential communications, whether documents must be produced, and how attorneys should respond to subpoenas or deposition questions.
In a recent discussion, Amy L. Gostanian, Managing Partner of The Estate Lawyers, spoke with Bradley R. Kirk, Managing Partner of Legal Strategy, about how privilege works in estate-related disputes—and why the answer is often more complicated than it appears.
Understanding the rules surrounding privilege can help estate planning attorneys avoid ethical pitfalls and protect both themselves and their clients.
When the Client Is Alive: The Client Holds the Privilege
In the most straightforward scenario, the client holds the attorney-client privilege while they are alive. This means the client—not the attorney—controls whether confidential communications can be disclosed.
However, complications arise when questions about the client’s capacity or competence enter the picture.
For example, a family member might claim that the client no longer has the mental capacity to make decisions about their legal affairs. Meanwhile, the client may still be actively communicating and insisting that their privilege remain intact.
In these situations, estate planning attorneys may face competing demands from:
- The client
- Family members
- Caregivers
- Attorneys representing other interested parties
Despite the pressure, the general rule remains the same: your duty runs first to your client.
Even when competency is questioned, attorneys should be extremely cautious about disregarding the client’s instructions without clear legal authority to do so.
When Competency Is Disputed
Disputes about a client’s competence often arise in estate and trust matters, particularly when significant assets or control of a trust are involved.
Estate plans sometimes contain provisions that address incapacity. For example, a trust document may state that the trustor is deemed incompetent once two physicians certify incapacity. But even when those letters exist, conflicts can arise if the trustor disagrees with that determination.
When faced with these disputes, attorneys typically look for one of three forms of clarity:
- Agreement between the parties involved
- Medical documentation regarding competency
- A court order resolving the issue
A court order is generally the clearest and safest authority when privilege disputes become contentious.
If none of these exist, the prudent course may be to avoid taking sides and refrain from disclosing privileged information until the issue is resolved.
When the Client Is Deceased
After a client passes away, determining the holder of the attorney-client privilege becomes more complicated.
California Evidence Code sections 950 through 962 address the attorney-client privilege and provide guidance on how privilege operates after death. These provisions are particularly important for estate planning attorneys to understand, especially if they are subpoenaed in litigation.
One key section—Evidence Code §953—addresses who may hold the privilege after a client’s death.
Generally speaking, if a probate estate has been opened, the personal representative of the estate is typically considered the holder of the privilege. That individual may decide whether privileged communications can be disclosed.
However, real-world cases are rarely that simple.
When the Privilege Holder Is Unclear
Estate litigation frequently involves complex procedural situations. For example:
- A probate may have been opened and later closed
- A trust dispute may arise after the estate administration is complete
- Multiple parties may claim authority over the decedent’s affairs
In these situations, determining who holds the privilege may not be straightforward. Courts may ultimately need to decide the issue if the parties cannot reach agreement.
Because privilege determinations can significantly affect litigation strategy and evidence, attorneys should approach these situations carefully.
Practical Guidance for Estate Planning Attorneys
If you are an estate planning attorney confronted with a subpoena, deposition, or request for your client file, consider the following steps:
Review the relevant Evidence Code provisions.
California Evidence Code sections 950–962 provide the legal framework governing attorney-client privilege.
Confirm whether the client is alive or deceased.
This distinction fundamentally affects who controls the privilege.
Determine whether a probate is open.
If so, the personal representative may hold the privilege.
Evaluate competency issues carefully.
If your client is alive but competence is disputed, your primary obligation generally remains to your client unless a court determines otherwise.
Consider consulting litigation counsel.
Privilege disputes can escalate quickly and may require legal analysis or court guidance.
Why This Issue Matters
Attorney-client privilege is one of the most important protections in the legal system. But in estate and trust disputes—especially after a client’s death—the rules governing privilege can become complex and highly contested.
For estate planning attorneys, understanding who holds the privilege is critical to avoiding improper disclosures, protecting client confidences, and navigating litigation safely.
🎥 Watch the full discussion between Amy Gostanian and Bradley Kirk to hear practical insights about privilege disputes and estate litigation.