Can a Washington lawyer prepare a will that names the lawyer as a beneficiary or as executor?

Plain-English summary

This is a consolidated informal opinion (formerly Published Informal Opinion 86-1). It answered two questions about a lawyer who prepares a client's will.

On the first question, whether the rules always prohibit a lawyer from preparing a will naming the lawyer as a beneficiary, the committee read RPC 1.8(c) as a per se prohibition on preparing any instrument under which the lawyer, or a person related to the lawyer as parent, child, sibling, or spouse, receives a gift, subject to two exceptions: where the gift is not substantial, or where the lawyer is related to the client. The committee said "substantial" should be judged by the economic nature of the gift viewed against either the size of the estate or the financial status of the lawyer at the time the will is prepared; a gift of mainly sentimental value would not be barred, but a substantial cash bequest or an object of substantial economic value would be. The committee added that RPC 1.8(c) prohibits a lawyer from preparing a will making the lawyer the residual beneficiary, because substantiality cannot be determined when the will is drawn. Even where an exception applies, the committee said, the general conflict rule RPC 1.7(b) continues to govern. The committee read its construction as consistent with Estate of Shaughnessy, where the lawyer was both a $5,000 specific beneficiary and the residual beneficiary, together a substantial gift.

On the second question, whether a lawyer may prepare a will designating the lawyer as executor, the committee concluded the rules do not prohibit it where the designation is at the client's express wish after the client has been fully informed of the duties, obligations, and likely costs. The committee noted that former Ethical Consideration 5-6, though not carried into the RPC, remains a sound guideline, and that the considerations in RPC 1.8(a) offer a useful checklist: the lawyer should disclose the executor's duties, the fees the lawyer will charge, the fees alternative executors would likely charge, and the client's freedom to seek independent counsel, preferably in writing. The committee treated the contrary language in Estate of Shaughnessy as dictum, since the majority there held the Code was not violated, and concluded the ultimate decision is the client's.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. It construes the pre-2006 versions of RPC 1.8 and 1.7 and refers to the former Code of Professional Responsibility. 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 a lawyer prepare a will that leaves the lawyer a gift?

A: The committee read RPC 1.8(c) as a per se prohibition on preparing an instrument giving the lawyer or a close relative a gift, subject to two exceptions: where the gift is not substantial, or where the lawyer is related to the client.

Q: How did the committee say to judge whether a gift is "substantial"?

A: It said to focus on the gift's economic nature compared with either the size of the estate or the lawyer's financial status at the time the will is prepared; a gift of mainly sentimental value would not be barred, but a substantial cash bequest or object of substantial economic value would be.

Q: Can a lawyer prepare a will making the lawyer the residual beneficiary?

A: No. The committee concluded RPC 1.8(c) prohibits it, because there is no way to determine whether the gift is substantial at the time the will is prepared.

Q: Can a lawyer be named executor in a will the lawyer drafts?

A: The committee concluded nothing in the rules prohibits it where the client expressly wishes it after being fully informed of the executor's duties, the fees involved, and the right to seek independent counsel, preferably documented in writing.

Background and rules framework

The opinion construes Washington RPC 1.8(c) (preparing an instrument giving the lawyer or a close relative a substantial gift), RPC 1.8(a) (business transactions and informed disclosure, used here as a guideline for the executor designation), and RPC 1.7(b) (the general conflict-of-interest rule, which the committee said continues to apply even when a 1.8(c) exception is met). These correspond to Model Rules 1.8 and 1.7. The committee also drew on former Ethical Consideration 5-6 of the superseded Code of Professional Responsibility and on the Washington Supreme Court's decision in Estate of Shaughnessy.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.8(c) (preparing an instrument giving the lawyer or a close relative a substantial gift), corresponding to Model Rule 1.8(c).
• Washington RPC 1.8(a) (informed disclosure; used as a guideline for the executor designation), corresponding to Model Rule 1.8(a).
• Washington RPC 1.7(b) (general conflict of interest), corresponding to Model Rule 1.7(b).

Cases:

• Estate of Shaughnessy, 104 Wn.2d 89, 702 P.2d 132 (Wash. 1985), lawyer named as specific and residual beneficiary.

Other authority referenced:

• Former Ethical Consideration 5-6 (Code of Professional Responsibility), guidance on a lawyer being named executor, trustee, or counsel.

See also

• WSBA Ethics Op. 926: lawyer as trustee under a deed of trust, conflict of interest
• CA COPRAC Op. 2011-180: gifts from a client
• ABA Formal Op. 02-428: drafting a will on the recommendation of a beneficiary who is also a client
• ABA Formal Op. 02-426: a lawyer serving as fiduciary for an estate or trust

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=57

Original opinion text

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

Advisory Opinion: 946
Year Issued: 1986
RPC(s): RPC 1.8, 86-1
Subject: Lawyer Named as Beneficiary or Executor on Will Prepared for a Client [Published Informal Opinion 86-1]

[Formerly published as Published Informal Opinion 86-1. All Informal Opinions are consolidated in this database.]

Questions: 1. Do the Rules of Professional Conduct always prohibit a lawyer from preparing a will in which the lawyer is a named beneficiary? 2. Do the Rules of Professional Conduct prohibit a lawyer from designating the lawyer as executor in a will prepared by the lawyer? Conclusions: 1. RPC 1.8 prohibits a lawyer from preparing an instrument giving the lawyer or immediate relative any substantial gift from a client, except where the client is related to the lawyer. 2. Nothing in the RPC prohibits a lawyer, at the request of the client after full disclosure, preferably in writing, from being named as executor in a will prepared by the lawyer.

Discussion: 1. Lawyer as Beneficiary: The first issue is governed by RPC 1.8(c), which provides: "A lawyer who is representing a client in a matter shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee." The comments to the ABA Model Rules of Professional Conduct, from which this provision was taken without change, provide: "A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide. RPC 1.8(c) recognizes an exception where the client is a relative of the donee or the gift is not substantial." While the comments to the Model Rules were not adopted by our Supreme Court, they are relevant in determining the intended scope of the rules and the construction which should be given them. The Committee reads RPC 1.8(c) to adopt a per se prohibition of the preparation of any instrument under which the lawyer, or a related person, receives a gift, subject to only two exceptions: 1. Where the gift to the lawyer is not substantial; or 2. Where the lawyer is related to the client. The term "substantial" is defined in the Rules of Professional Conduct as follows: "'Substantial' when used in reference to degree or extent denotes a material matter of clear and weighty importance." In determining whether the subject of a particular gift is "substantial" the Committee believes the lawyer should focus on the economic nature of the proposed gift when viewed from the perspective of both the client and the lawyer at the time the will is prepared. If the proposed gift is substantial when compared with either the size of the estate or the financial status of the lawyer, RPC 1.8(c) prohibits the lawyer from preparing the will in which the gift is made. If the primary nature of the gift is not economic, such as where a client wishes to bequeath an object of sentimental significance to a lawyer, the Committee is of the opinion that RPC 1.8(c) would not prohibit the lawyer from preparing the will in which the gift is made. Where a substantial cash bequest is proposed or where the object is of substantial economic value, the Committee believes that RPC 1.8(c) prohibits the lawyer from preparing the will in which the gift is made. The Committee also believes that RPC 1.8(c) prohibits a lawyer from preparing a will in which the lawyer is the residual beneficiary because there is no way to determine whether such a gift is substantial at the time the will is prepared. The second exception to the general prohibition applies in situations where the lawyer is a relative of the testator. While RPC 1.8 states the exception in absolute terms, it must be kept in mind that the lawyer's conduct in preparing such an instrument would continue to be governed by the general conflict of interest rule, RPC 1.7(b), which provides in material part "A lawyer shall not represent a client if the representation of that client may be materially limited . . . by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents in writing after consultation and a full disclosure of the material facts . . ." The Committee is of the opinion that this rule is applicable in all situations in which a lawyer prepares a will in which the lawyer is a beneficiary, including where the bequest is not substantial or where the client is a relative of the lawyer. The Committee does not believe this construction of the relevant rules is inconsistent with the decision of the Supreme Court in Estate of Shaughnessy, 104 Wn.2d 89, 702 P.2d 132 (1985). While portions of the literal language of both the majority and dissenting opinions can be read to create an absolute prohibition against a lawyer preparing a will in which the lawyer is named as a beneficiary, the Supreme Court was addressing a situation in which the particular lawyer involved was both a specific beneficiary of $5,000 and the residual beneficiary of the estate. Together the specific bequest of $5,000 and the designation of the lawyer as the residual beneficiary clearly constitutes a "substantial" gift and thus a lawyer would be prohibited by RPC 1.8(c) from preparing a will containing them. The Committee does not believe that the opinion should be read to modify RPC 1.8(c) to prohibit a gift which is not substantial as described above or situations in which the lawyer has prepared a will for a member of his or her family which makes the lawyer a beneficiary. 2. Lawyer as Executor: The second issue, whether a lawyer may prepare a will which designates the lawyer as executor, presents different issues. The Rules of Professional Conduct do not specifically address this issue. Under the former Code of Professional Responsibility, Ethical Consideration 5.6 provided: "A lawyer should not consciously influence a client to name him as executor, trustee or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety." While this ethical consideration was not carried over to the Rules of Professional Conduct in express terms, the Committee believes it constitutes a sound and workable guideline for lawyers to follow in situations where their clients wish them to act as executors. The Committee does not believe the Rules of Professional Conduct prohibit a lawyer from preparing a will in which the lawyer is named as executor where that designation is at the express wish of the client after the client has been fully informed by the lawyer as to the duties and obligations of an executor and of the costs likely to ensue. While the Committee believes that the designation of a lawyer as executor in a will does not create a business relationship between the lawyer and the client, the considerations expressed in RPC 1.8(a) provide a useful guideline to a lawyer to designate himself or herself as executor. The lawyer should disclose to the client the duties and obligations of an executor, the fees which the lawyer will charge for performing those services, the fees alternative executors would probably charge, and should advise the client that he or she is free to seek the advice of independent counsel. This disclosure should be in writing to ensure that the client understands its significance and to establish conclusively that it occurred. As with the first issue, the literal language of Estate of Shaughnessy can be read to establish a per se prohibition against lawyers preparing wills in which they are named as executors regardless of the desires of their clients. This language is dictum, however, since the majority opinion specifically held that the Code of Professional Responsibility was not violated by the lawyer's actions. The Committee believes that both the majority and the dissenting opinions in the Estate of Shaughnessy must be read in light of the facts of the case presented to the court. In addition to the presence of substantial bequests to the lawyer, there is no indication that the lawyer fully advised the client nor that the client affirmatively decided that the lawyer should be the executor after being so advised. The Committee does not believe the Supreme Court intended to prevent a lawyer from preparing a will in which the lawyer is named as executor in situations where the client is fully advised and affirmatively desires the lawyer to so serve. While undoubtedly it is the better practice for a lawyer not to be named as executor in a will which the lawyer prepares and such a course would preclude any questions arising later, the Committee believes that the ultimate decision is the client's. If the client, after full disclosure, desires the lawyer to act as executor, a lawyer has no professional obligation to refuse to do so. We do not believe the Supreme Court would prohibit a fully informed client from choosing to have his or her lawyer both prepare the client's will and serve as executor of the estate.