The holder of attorney-client privilege in different trust and estates contexts.

The question of "who holds the attorney-client privilege in probate matters?" is answered differently depending on the type of estate.

In trust estates, the trustee holds this privilege. The privilege is not specific to any individual trustee and is instead held by the trustee's office. Fiduciary Trust Int'l of Cal. v Klein, 9 Cal. App. 5th 1184, 1195-1197 (2017) (powers conferred on trustee are not personal but are inherent in trustee's office).

The important implication of this rule is that a successor trustee is entitled to communications between predecessor trustee and her counsel. Moeller v. Superior Court, 16 Cal. 4th 1124 (1997). Further, this rule cannot be changed in the trust instrument. Morgan v Superior Court, 23 Cal. App. 5th 1026, 1037 (2018) (trust language "that a trustee is 'free from any duty or right of disclosure to any successor trustee' violates public policy as expressed by statute, and is therefore void"). This rule applies not only to successor trustees, but also to interim trustees. Id. at 1039.

However, a trustee may be able to withhold communications with her counsel if she was seeking advice in her personal capacity (rather than in connection with the trust administration), for example, where a claim for breach of trust is involved. As the Moeller court explained:

"[T]he successor trustee inherits the power to assert the privilege only as to those confidential communications that occurred when the predecessor, in its fiduciary capacity, sought the attorney's advice for guidance in administering the trust. If a predecessor trustee seeks legal advice in its personal capacity out of a genuine concern for possible future charges of breach of fiduciary duty, the predecessor may be able to avoid disclosing the advice to a successor trustee by hiring a separate lawyer and paying for the advice out of its personal funds."

Moeller v. Superior Court, supra, at 1134. (emphasis in the original). See also Morgan v. Superior Court, supra, at 1039 (communications with trust's counsel are discoverable where there is no evidence or contention that trustee "distinguished his own interests" and "retained separate counsel for that purpose").

There is no bright-line rule regarding how to distinguish trustee's own interests from those of the beneficiaries in order to determine that a communication was made for the purpose of obtaining protection against personal liability. "[T]he court expects a trustee to undertake some process to establish that a trust communication was intended to be confidential at the time the communication was elicited or obtained from counsel." Fiduciary Trust Int'l of Cal. v Klein, supra, at 1199.

From a practical point, a trust administration attorney should explain to the trustee that the attorney-client privilege exists between the attorney and the office of the trustee, at the outset of the attorney-client relationship, and that if the trustee resigns or is removed, they should expect that all communications they have had with the trust administration attorney will be disclosed to a successor trustee. And, if an issue arises with respect to any breaches of trust (e.g., where trustee's removal is sought), a trustee should hire independent counsel (i.e., trustee should not use a trust administration attorney in a removal action), and pay for that counsel out-of-pocket.

It is important to note that a trust's beneficiaries are not entitled to communications between a trustee and her counsel. Wells Fargo Bank v. Superior Ct., 22 Cal. 4th 201, 209 (2000). It is advisable that a trust administration attorney explain to the beneficiaries, who may often reach out to her, that she is not representing them. "The duty to communicate with a client includes the duty to communicate to persons who reasonably believe they are clients ... at least to the extent of advising them that they are not clients." Butler v. State Bar, 42 Cal. 3d 323, 329 (1986).

In guardian ad litem and conservatorship contexts, the guardian or conservator is the holder of the privilege of her ward or conservatee, respectively. Evidence Code Section 953(b). However, when the guardianship or conservatorship terminates, e.g., when a minor reaches majority, she becomes the holder. 2 Witkin, Cal. Evid. 5th §109 (2022). Further, if the guardian or conservator has an actual or apparent conflict of interest, she does not hold the privilege and the privilege is instead in the ward or in the conservatee. Evidence Code Section 953(b). Just as with trust estates, it is the office of the guardian ad litem and the office of conservator that holds the privilege, not any individual guardian or conservator. Stine v. Dell'Osso, 230 Cal. App. 4th 834, 843 (2014) ("[Successor conservator], as the successor fiduciary, became the holder of the privilege as to all communications by and between the fiduciary and counsel pertaining to the conservatorship estate, whenever they occurred."). Further, a guardian can assert attorney-client privilege over communications with her ward where they were at the request of her ward's attorney, for example, in a civil case:

"Since [Minor's] statements to his mother were made in response to questions she asked at the request of his attorney either for the purpose of preparing [Minor's] answers to the interrogatories or to assist the attorney in preparation for trial, the statements were clearly given in the course of a lawyer-client relationship. Nor can it be doubted that they were intended to be confidential."

De Los Santos v. Superior Ct., 27 Cal. 3d 677, 682 (1980).

In decedent context, the personal representative of the deceased client holds the attorney-client privilege, including a personal representative appointed pursuant to Probate Code Section 12252 (authorizing appointment of a personal representative where subsequent administration of the estate is necessary after the personal representative has been discharged). Just as with trustees, conservators, and guardians, the attorney-client privilege holder is the office of personal representative. Any successor personal representative can obtain the confidential communications that any previous personal representative had with her attorney. It is important to note that once the estate is closed, the privilege terminates, and any communications the decedent had with her lawyers during lifetime become discoverable.