This written disclosure is intended to be an informative discussion of potential conflicts of interest arising from a single lawyer or law firm preparing estate planning documents for both spouses or joint clients.
It is a frequent occurrence that clients, or potential clients, prefer to jointly pursue their estate planning objectives and have a single lawyer coordinate their Wills, Trust Agreements, or other estate planning instruments. Frequently the clients, or potential clients, expect that a single lawyer or law firm can most expeditiously achieve their goals, and while there may be potential conflicts of interest, there are, in actuality, no real conflicts. However, personal and family circumstances may change and actual conflicts may arise, and therefore, it is important for clients consenting to joint representation of both spouses or partners in estate planning to be aware of the potential sources of conflict.
This document confirms that each of you have requested, or are in the process of requesting, Boland Law Group, PLLC to represent you both and to advise you on estate planning matters.
It is contemplated that matters which legal counsel will be involved with in estate planning would be the following:
(a) Analysis of the spouses' existing wills, codicils, trust agreements, and property agreements, if any;
(b) Analysis of the assets owned by each spouse at the time of marriage, including an approximation of the fair market value of such property and the nature in which title was then held;
(c) Analysis of all property now owned by each of the spouses, including a determination of its fair market value and the manner in which title to such property is now held, and a categorization of such property as separate or community property;
(d) Discussions about the manner in which the spouses wish to dispose of any property over which spouses may have any power of disposition at the time of their death;
(e) Analysis of the tax impact of such disposition and recommendations for alternative dispositions; and
(f) Preparation of the documents necessary to accomplish the desired disposition, including the drafting of wills, trust agreements, property agreements, and other documents as may be required.
In many instances, both spouses are much happier when each knows and approves the provisions of the other's will. Sometimes an attorney can be very helpful to both parties in advising them of what will take place at the time of death of either of them. However, there are instances where each of the parties desires, and is entitled to, confidential advice and guidance from the attorney. This may be particularly true where the parties each own separate property or have children by prior marriages. Specific instances where one spouse may desire to have separate legal counsel include the following:
(a) Where there is a recent marriage and one of the spouses has a substantially larger estate than the other, separate estate planning may be advisable.
(b) In community property states, such as Arizona, where one or both of the spouses has a substantial amount of separate property, advising clients on how to prevent commingling the separate property and how to make gifts
of the separate property may in some instances suggest separate estate planning. In addition, a conflict may exist in the determination of what is community property and what is separate property. That determination may be
more beneficial for one of you than the other. If you partition community property or give property to your spouse as part of your estate plan, the possibility of a divorce must also be recognized.
(c) Where each spouse has a substantial estate that they desire to pass to persons other than their surviving spouse, advice as to the selection of a personal representative (also known as executor) and tax consequences of the gifts, including the questions of whether or not the marital deduction should be considered, may in some instances suggest that each spouse employ separate counsel.
(d) Where one spouse has real property or corporate holdings that have been in their family for a number of years and they desire that the properties remain in their family and not pass to the other spouse, it may be advisable to employ separate counsel.
We must make recommendations that affect your joint and separate property interests after your death. A substantial conflict may exist in the determination of what is community property and what is separate property, and such determination may be more beneficial for one of you than the other. The possibility of a divorce must also be recognized.
Consequently, our present recommendations could affect the income, property, and support provisions in such divorce or after the death of one or both of you.
We feel that you can decide whether you want us to represent both of you in estate planning only after you have been informed by us as to the facts of these potential conflicts. You are each, of course, welcome to have your own separate counsel for any part or all of the matters we are undertaking or proposing to undertake for you.