Legal Question in Wills and Trusts in California

I posted this conflict-of-interest question previously in the wrong category.

There are two wills, two trusts, and an attorney/ estate planner/ instrument drafter/ remainder beneficiary related to the settlors/ trustors. The attorney is named in the wills as executor; was named in one trust instrument as successor trustee, and was continuously trust attorney; became trustee of the other as soon as it was signed; and was named in both trusts as one of the remainder beneficiaries. Only he was present with the settlors/ trustors at the reading and signing of the instruments. A law firm partner served as notary.

Does another code forbid what the Probate Code does not? An inactive member of the California Bar keeps telling me one does, and insists that I need someone who specializes in malpractice rather than probate. The code section is not in any of the places where he told me to look. All I can find are Rule of Professional Conduct 3-300 and Magee v. State Bar.

The author went on to commit multiple breaches with both trusts. I am asking whether the role combination in itself broke any rules that can be enforced.


Asked on 12/07/11, 5:00 pm

3 Answers from Attorneys
Kai Wessels Kai H. Wessels

Yes, there are code sections that probably apply. They are Probate Code sections 21350, et seq. Based upon what you describe, there does appear to be the possibility of improper behavior. You should definitely see an attorney to further assist you. I would recommend an attorney in or near the county where the will or trust would have to be litigated.

Good luck and sincerely,

Kai H. Wessels, Esq.

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Answered on 12/07/11, 5:12 pm
Scott Jordan Jordan Law Office

I agree with Mr. Wessels. At the very least, the drafting attorney naming himself as trustee and beneficiary raises serious ethical issues.

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Answered on 12/07/11, 5:30 pm
Jennifer Rouse Meissner Joseph & Palley

If the attorney was related to the settlors by blood or marriage, then they are not a disqualified beneficiary under Probate Code Section 21350 per Section 21351. However, if the attorney breached a fiduciary duty while acting as trustee, then you may be able to ask the court to remove them.

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Answered on 12/07/11, 6:13 pm


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