Can My Estate Planning Attorney Divulge My Information After I'm Gone?

The rules regarding attorney client privilege and confidentiality are sacrosanct. These rules protect most communications between clients and their attorneys. This is necessary to ensure that clients receive competent legal representation by encouraging full disclosure by the client without the fear that the information will be revealed to other parties. This protection includes preventing the attorney from being compelled to testify against their client.

The general rule is that the attorney client privilege does not cease upon the client's death. There is no general posthumous exception. In fact, the U.S. Supreme Court upheld this more than 20 years ago in quashing an attempt to subpoena attorney-client conversations between Deputy White House Counsel Vince Foster and his attorney that took place days before Foster's death.

Nevertheless, there are a few specific exceptions. In Minnesota, one such exception is the testamentary exception to privilege and confidentiality. This exception has been recognized under Minnesota law since the 1920s. However, the courts make distinctions between situations involving disputes initiated by heirs or next of kin, versus those involving third parties (e.g., creditors) seeking privileged information to establish claims against the estate. In the latter situations, Minnesota law does not allow the application of the testamentary exception to those third parties.

What this means is that the court can require that an attorney hand over privileged information in cases where a claimant, such as a beneficiary, heir, or omitted next of kin, has an interest in the deceased client's estate. In most cases, the attorney subject to the court's disclosure request will have no choice but to comply with the request. But the court will not allow a third party, such as a creditor, to access to the decedent's privileged information.

When communicating with your attorney to discuss your estate plan, it is important to know that your information has protections that apply while you are alive. During your lifetime, your heirs, beneficiaries, and other persons cannot demand to obtain your privileged and confidential communications between you and your attorney. 

However, after you pass, it may be possible for certain persons to request such information, perhaps in a Will contest. Or a descendant may have questions about your testamentary intentions, questions that cannot be answered after you are gone.

While no Will is infallible, a well-crafted document can lessen the risk of it being contested. Talking to a qualified Minnesota attorney is the first step in protecting your estate assets.

 

Your Kids Don't Want Your Stuff.

They simply may not want all of those personal items you've accumulated over the years: household goods, furniture, clothes, decorations, collectibles, and all that stuff piled up in boxes in your garage or attic. Do your children really want to be sifting through that after you're gone?

(They do want your cash, and whether or not you may wish to give them a large amount of it was the topic I discussed in a recent article.)

Perhaps you're retired, or thinking about retirement. Now might be a good time to downsize. Clean out the closets and basements. Get rid of some clutter, things you haven't used in a while and probably won't use anytime soon. Have a yard sale or post it on Craigslist and make a few bucks. Donate items to charity, recycle, or just toss them out. Rent a roll-away dumpster if you have a lot of unsalable items to clear out.

The Swedes have made this practically an art form, and of course, there's a book on the subject.

Every generation has its style conventions, and your kids' generation has its own, too. They may not have the same appreciation for the things you enjoy, and if they inherited them, might not have space for them. Younger people are less apt to purchase real estate than members of previous generations. (Who can afford to buy a house now, anyway?) Many more people are renting, and they may not need or want a lot of your items after you are gone.

This is not to say everything needs to be given the heave-ho. There may be certain items your kids will appreciate receiving. Earmark some keepsakes: perhaps family heirlooms, mementos from your military service, a hand-made piece of furniture, artwork, or a family photo album. Talk to your children about what's important to them. Discuss with each of them what they might like to receive when you're gone, the family items they would treasure and perhaps pass on to their children some day.

You can give specific personal items to family members by means of a written list incorporated into your Will. 

Talking to a qualified attorney is the first step to creating an estate plan that reflects your wishes.

Why Choosing The Right Fiduciary Is So Critical.

When you execute a Power of Attorney and designate a fiduciary (Attorney-in-Fact), you are granting an enormous amount of power to that person. Perhaps you have already executed a POA and have named one or more family members to act in your interests financially. They are your family, maybe your children. You should be able to trust them, right?

A cautionary tale.

Will the kids take on the task of protecting your financial well-being and do the right thing? Over time, the dynamics in your family may change. People change. Are the persons you have entrusted to represent what's best for you still the best people for the job?

It might be wise to revisit those legal documents from time to time and ask yourself a tough question--are your fiduciaries are still up to the task? Talking to a qualified estate planning attorney is a good first step to ensuring that your legal instruments still reflect your needs and best interests.

"We're Spending Our Children's Inheritance!"

You usually spot that message on bumper stickers attached to big RVs. It's kind of a glib slogan, but when you think about it, maybe it's not such a bad idea. (You're probably thinking this sounds harsh, but hear me out...)

You've spent your adult life working hard and building up a nice nest egg. Now comes the time to reap the benefits--enjoy what you've been working for all those years. Buy a vacation home, travel, take up a new hobby. Live your retirement years to the fullest and perhaps leave just a modest sum for the kids. It's your money. Sure, the kids might love to inherit a big pot of money, but is that really the best thing for them? Would leaving a large inheritance help them, or would it create problems for them? 

There are some points to consider on whether to leave a big inheritance.

• If an adult child has addiction or money problems, giving them a large inheritance may only magnify the problem.
• Money may (and often does) create conflict among family members. Grief amplifies that.
• It's human nature for people to be less careful with money they didn't have to earn. Statistically, roughly half of them will just blow it anyway.
• Leaving a modest inheritance encourages children to not rely on it to solve all their money woes.
• Perhaps your children are already finding their way financially and they don't need it.
• The kids might be burdened with tax liabilities if the estate is large.

A couple possible alternatives:

• Show your generosity by giving family heirlooms instead--something they would treasure and hand down through the generations. Those are the things your kids will remember you by.
• Another option: Give them some of their inheritance early--there is a $15,000 per person per year gift tax exemption. Perhaps put it into an investment, like a college fund or earmark for a home down payment.

The take-away point I'm making is this: There's more than one good way to leave an inheritance to children. You may wish to leave it all to the kids, and that's fine. On the other hand, maybe you don't want to leave so much, and that's OK, too. It's your money, and you should do what you feel best with it.

Whatever you wish to do, it would be prudent to talk to a financial planner and/or tax advisor on how to best manage your assets now. It would also be prudent to talk with a qualified attorney to discuss options for your estate plan.

The Safekeeping Of Your Estate Planning Documents.

You have just executed (signed) your Will, and perhaps also a financial Power of Attorney and Health Care Directive. What now?

While many law firms will store original, signed documents on behalf of clients, many do not. (I do not.) You may be tasked with the custody and safe storage of your valuable estate planning instruments. Too many people stash their valuable documents in a shoe box or among a stack of papers on a desk, which is a very bad idea.

In the case of Wills, your personal representative will need to obtain the original, signed instrument to submit to the probate court after you die. Therefore, it is essential that your Will be kept in a safe, secure location, but one where the personal representative has access when needed. 

A home safe, secure file cabinet or fire-resistant lock box is a good location for a Will. This minimizes the chance that the Will is lost or destroyed by fire or flood, and it keeps it away from prying eyes. Another option is to store the Will in a safe deposit box at a bank. However, it is important that the personal representative has access to the box.

Perhaps the best and most secure option is to deposit the Will for safekeeping at your county probate court, usually for a small fee. That way, the Will is kept where it needs to be when the time comes.

It's a little different for a Power of Attorney and Health Care Directive. These are documents that are needed while you are alive but usually at a time when the you are incapacitated or otherwise unable to make decisions for yourself. The documents may be needed quickly when the time comes, and as such, they should be stored in a place where they can be immediately retrieved. The named fiduciaries should have knowledge of their location in advance and have access to them. For these instruments, a bank safe deposit box may not be an ideal location, as the institution may be closed when the documents are needed. A file cabinet or home safe is a good location. 

Most health care providers will scan and store a patient's Health Care Directive, so it is important to give copies to your doctor, clinic, local hospital, care facility, etc.