I help clients create trusts EVERY. SINGLE. DAY.
I have an attorney-client relationship with the client(s).
I don’t have one with the people they name in their trusts who are going to get property or money after they pass away. Those people are called beneficiaries. I have zero relationship with them.
This is true even after my client dies.
Part of this relationship is confidentiality (with my client, only). I cannot share anything with anyone that my client says, or, ultimately, what my client signs.
But, it is a common situation after someone dies. A family member calls the attorney who prepared the deceased person’s estate plan and says, “I know I am a beneficiary of the trust. Can you send me a copy?”
It sounds like a simple request, but under Georgia law, the answer is more complicated than you might expect.
An attorney’s duties of confidentiality do not simply disappear at a client’s death. As a result, the attorney who drafted the trust generally cannot assume that he or she is free to turn over the client’s estate planning documents or attorney file to anyone who asks for them—even someone who says they are a beneficiary.
So what does a person do if they know or believe they are a beneficiary?
Well it isn’t straightforward, but usually they should reach out to the person they believe is responsible for taking care of the business side of a trust after the client passes away.
A revocable living trust becomes irrevocable on the day a person who creates the trust dies. At that point, the trust usually controls what happens from there. And Georgia law does also.
Under Georgia law, a beneficiary may have some things to which they are entitled. Maybe. Again, it will depend.
What if the same attorney who prepared the trust is now representing the trustee? Which happens a lot. It is pretty normal, actually.
In that situation, the attorney may communicate with beneficiaries on behalf of the trustee. But the attorney is generally acting as the trustee’s attorney. The attorney does not automatically become the beneficiary’s attorney simply because the attorney is communicating with the beneficiary.
For beneficiaries, the practical takeaway is simple: if you believe you are a beneficiary of a Georgia trust and want information about your interest, your first request should generally be directed to the acting trustee. Not the attorney with whom your deceased relative worked with to create the trust. Because they cannot talk to you!
For trustees, the lesson is equally important. A request from a beneficiary should not simply be ignored. The trustee should determine a number of very important things with regards to that person, the requrest they are making and what does Georgia law AND THE TRUST require they do in terms of obligations.
Trust administration creates legal responsibilities that are different from simply locating and reading the estate planning documents. Understanding who represents whom—and who has the obligation to provide information—can prevent confusion and conflict at the very beginning of the trust administration process.
If you are a trustee and need help understanding what your responsibilities are to the beneficiaries, we may be able to help you!