Can a lawyer who drafts a client's will be named in it as executor and estate attorney, and can the lawyer also be named a beneficiary?

Plain-English summary

The inquiry asked two questions: whether a lawyer who draws a will for a client may be named in that will as executor and also as attorney for the estate; and whether it would be a violation if, in addition, the lawyer were named a beneficiary under the will.

On the first question, the Committee was of the view that there is no violation in a lawyer being named executor and attorney for the estate, provided there is no pressure brought to bear on the client and such appointments represent the true desire of the client (9-0).

On the second question, the Committee concluded that where the lawyer is also to be named a beneficiary under the will, there would be a possible conflict of interest, and it would be improper for the lawyer to prepare such a will (7-1).

Currency note

This opinion was issued in 1953, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the lawyer who drafts a will serve as both executor and estate attorney under this opinion?

A: Yes, provided no pressure is brought to bear on the client and the appointments represent the client's true desire (9-0).

Q: Can that same lawyer also be named a beneficiary in the will?

A: No. The Committee found that naming the drafting lawyer a beneficiary presents a possible conflict of interest, making it improper to prepare such a will (7-1).

Q: What was the dividing line in the opinion?

A: The Committee separated the fiduciary and service roles (executor and attorney), which it allowed when freely chosen by the client, from a personal financial benefit (beneficiary), which it treated as a conflict.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), applied to a lawyer who drafts a will and is named in it. The modern analogs are ABA Model Rule 1.7 (conflicts of interest) for the executor and attorney roles, and Model Rule 1.8 (specifically the limit on a lawyer preparing an instrument giving the lawyer a substantial gift) for the beneficiary question.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients), as the modern analog
• MR 1.8 (lawyer preparing an instrument giving the lawyer a substantial gift), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

See also

• TX Ethics Op. 74: Creditors' Lawyer Taking an Estate Fee
• TX Ethics Op. 115: Representing a Contested Former Guardian
• TX Ethics Op. 104: Imputed Conflict From a New Partner

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-71/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_71.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Is it a violation of the Texas Canons of Ethics for a lawyer to draw a will for a client, in which will such lawyer is named as the executor and also as the attorney for the estate?
Is it a violation of any of the Texas Canons of Ethics for a lawyer to draw such will if, in addition to the facts stated in (1) hereof, said lawyer is also named as a beneficiary under the terms of the will?

18 Baylor L. Rev. 226 (1966)

CONFLICT OF INTERESTS - WILLS
An attorney who draws a will for a client may be named in the will as executor and attorney for the estate, provided no pressure is brought to bear on the client, and the appointments represent the client's desire.

CONFLICT OF INTERESTS - WILLS
An attorney who draws a will for a client and is named in the will as executor and attorney for the estate, may not also be named as a beneficiary under the will.

Canon 6.

The committee is of the view that there is no violation of the Canons of Ethics for a lawyer to be named as executor and attorney for the estate, provided there is no pressure brought to bear on the client, and such appointments represent the true desire of the client. (9-0)
The committee is of the view that where the lawyer is also to be named as a beneficiary under the will, there would be a possible conflict of interest and it would be improper for the lawyer to prepare such will. (7-1)

Tex. Comm. On Professional Ethics, Op. 71 (1953)