Ethics in Probate Practice: Common Pitfalls and How to Avoid Them

Ethical Problems Unique to Probate Practice

Honestly, probate sits at the intersection of the least intuitive ethics rules in the legal profession — Model Rules 1.6, 1.7, 1.8(c), 4.2, 4.3, and 5.4(a) all bite hard in this practice area. Unlike transactional or litigation work where the client's identity is rarely in doubt, probate attorneys routinely face ambiguity about who their client is, what duties they owe to non-clients, and how to navigate competing interests of fiduciaries, beneficiaries, and family members.

The emotional context — grief, family conflict, financial stress — amplifies every ethical tension and makes it more likely a misstep becomes a grievance. One slip can end a career.

The ABA Model Rules of Professional Conduct provide the foundational framework for attorney ethics, but their application in probate is often uncertain. The Model Rules were drafted with bilateral attorney-client relationships in mind—one attorney, one client.

Probate practice frequently involves multi-party relationships, fiduciary obligations that overlay the attorney-client relationship, and duties to persons who are not clients but whose interests are directly affected by the attorney’s conduct. The ACTEC Commentaries on Model Rules are an indispensable resource for probate practitioners because they address these unique situations directly.

This article surveys the most common ethical pitfalls in probate practice and provides practical guidance on how to avoid them. Whether you are a seasoned probate practitioner or new to the field, a regular review of these issues is essential—because the moment you stop thinking about ethics is the moment you are most likely to commit a violation.

Who Is the Client? The Foundational Question

The question “Who is the client?” is the threshold ethical issue in every probate engagement, and the answer is less obvious than it might appear. When an executor retains an attorney to administer an estate, is the client the executor personally, the estate as an entity, or both?

When a surviving spouse and adult children attend the initial consultation together, who has the attorney hired? When a trustee seeks legal advice on trust administration, does the attorney owe duties to the trust beneficiaries as well?

There are two competing frameworks for analyzing this question. The “entity approach,” endorsed by ACTEC and adopted by some jurisdictions, treats the estate or trust as the client entity—analogous to a corporation under Model Rule 1.13.

Under this approach, the attorney represents the fiduciary in their representative capacity (as executor, administrator, or trustee), and the attorney’s duty runs to the estate or trust rather than to the fiduciary personally or to individual beneficiaries. The alternative approach treats the fiduciary personally as the client, with no direct duty to the estate as an entity or to the beneficiaries.

The practical implications of this distinction are significant. Under the entity approach, if the attorney discovers that the executor is self-dealing or mismanaging estate assets, the attorney’s duty runs to the entity (the estate) and may require the attorney to take protective action on behalf of the entity—even against the interests of the executor who hired them.

Under the personal-client approach, the attorney’s duty runs to the executor, and the attorney may be limited to advising the executor about the legal consequences of their conduct without independently taking action. Clarify this issue in your engagement letter and be prepared to consult your state’s ethics opinions if a conflict between the fiduciary and the estate arises.

Conflicts of Interest in Multi-Party Representation

Conflicts of interest arise in probate practice with a frequency that would alarm attorneys in other practice areas. The most common scenario is the request to represent both the executor and one or more beneficiaries—a dual representation that creates a conflict under Model Rule 1.7 whenever the interests of the fiduciary and the beneficiary diverge.

And they will diverge. The executor’s duty to administer the estate impartially may conflict with a beneficiary’s desire for accelerated distributions.

The executor’s interest in being compensated for their services may conflict with the beneficiaries’ interest in minimizing administration costs. The executor’s decisions about selling estate assets, settling creditor claims, or interpreting ambiguous will provisions will inevitably favor some beneficiaries over others.

Model Rule 1.7(b) permits representation despite a concurrent conflict if the attorney reasonably believes they can provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against another in the same litigation, and each affected client gives informed consent confirmed in writing. In practice, the third condition is often the deal-breaker in probate: if a beneficiary later challenges the executor’s accounting or seeks removal of the executor, the attorney cannot represent both sides in what has become an adversarial proceeding.

The safest approach, recommended by most malpractice insurers and ethics advisors, is to represent only one party—typically the fiduciary in their representative capacity—and to make clear in the engagement letter that other parties (beneficiaries, co-executors, family members) are not clients and should seek independent legal advice if their interests diverge. If you do undertake multi-party representation, document the informed consent meticulously and include a provision in the engagement letter specifying that you will withdraw from representing all parties if an unwaivable conflict arises. For guidance on structuring engagement letters to address these issues, see our article on fee agreements in probate practice.

Duties When Discovering Fraud or Fiduciary Misconduct

One of the most challenging ethical situations in probate practice arises when the attorney discovers that their client—the fiduciary—is committing fraud, self-dealing, or other misconduct in the administration of the estate or trust. Model Rule 1.6(a) generally prohibits the attorney from disclosing confidential information relating to the representation without the client’s informed consent. But Model Rule 1.6(b) provides several exceptions that may permit (though typically not require) disclosure, including disclosure “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm” or “to prevent, mitigate, or rectify substantial financial harm” resulting from the client’s criminal or fraudulent act in which the lawyer’s services have been used.

If you discover that the executor is embezzling estate funds, commingling estate assets with personal assets, making self-interested distributions, or concealing assets from beneficiaries, your first step is to advise the executor of the legal consequences of their conduct. If the executor refuses to cease the misconduct and remedy the harm, you must consider your obligations under your state’s version of Rules 1.6, 1.13 (if the entity approach applies), and 1.16 (mandatory withdrawal). Under the entity approach, the attorney may have a duty to take remedial action on behalf of the estate entity, including referring the matter “up the ladder”—which, in the probate context, typically means notifying the court or the beneficiaries.

Withdrawal from the representation is almost always required when the fiduciary persists in misconduct. Under Model Rule 1.16(a)(1), an attorney must withdraw if continuing the representation would result in a violation of the rules of professional conduct or other law.

Under Rule 1.16(b)(2), an attorney may withdraw if the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent. The withdrawal must be handled carefully—the attorney cannot reveal confidential information to explain the reason for withdrawal, but they can “noisily withdraw” in some jurisdictions by disaffirming prior submissions to the court that the attorney has learned were false or misleading. Consult the ABA Standing Committee on Ethics and your state bar for current guidance on these situations.

Confidentiality and Deceased Clients

The duty of confidentiality does not end at the client’s death. Model Rule 1.6 applies to “information relating to the representation of a client,” and Comment [20] to Rule 1.6 states that the duty continues after the client-lawyer relationship has terminated, which includes termination by death. This means that the attorney who drafted the decedent’s will or trust generally cannot disclose the contents or rationale of the estate plan to third parties—including the executor, the beneficiaries, or the court—without authorization from the personal representative who has succeeded to the decedent’s privilege.

The “testamentary exception” to attorney-client privilege, recognized in many jurisdictions, permits the attorney to disclose communications with the deceased client that are relevant to the validity, construction, or administration of the estate plan. The Restatement (Third) of the Law Governing Lawyers §81 recognizes this exception, reasoning that the decedent would have wanted the communications disclosed to effectuate their testamentary intent. Most courts apply the exception broadly in will contests and trust litigation, allowing the drafting attorney to testify about the testator’s instructions, mental state, and expressed intentions during the planning process.

The practical implication is that the estate planning attorney may be called as a witness in any proceeding challenging the estate plan they drafted. This possibility should be anticipated and addressed during the planning engagement. Maintain detailed, contemporaneous notes of every meeting with the client, including the client’s expressed rationale for their dispositive choices, any concerns about potential challenges, and your assessment of the client’s capacity and freedom from undue influence. These notes may be your most important evidence if the plan is later challenged. For more on defending against challenges to estate plans, see our article on defending against will contests.

Fee Sharing, Referral Fees, and Solicitation Rules

The rules governing fee sharing and referral fees in probate practice are among the most frequently misunderstood—and violated—provisions of the ethics rules. Model Rule 1.5(e) permits fee sharing between attorneys not in the same firm only if the division is in proportion to the services performed (or each attorney assumes joint responsibility), the client agrees in writing, and the total fee is reasonable. The “joint responsibility” option allows a referring attorney to receive a share of the fee without performing proportional work, but it requires the referring attorney to assume malpractice liability for the representation—a risk that many referring attorneys do not fully appreciate.

Fee sharing between attorneys and non-lawyers is prohibited by Model Rule 5.4(a). This rule prohibits arrangements where the attorney pays a CPA, financial advisor, or other non-lawyer professional a fee or percentage of the attorney’s fees for referring a client.

Such arrangements are distinguishable from the permitted payment for advertising or marketing services under Rule 7.2(b), which allows payment for the cost of advertising (such as a directory listing or website) but not payment for a recommendation. The distinction between “advertising” and “referral fee” can be subtle, and practitioners should err on the side of caution.

Solicitation rules also merit attention in probate practice. Model Rule 7.3 restricts real-time solicitation (in person, by telephone, or by real-time electronic communication) of prospective clients when a significant motive is pecuniary gain.

In the probate context, this means you cannot contact a recently bereaved family member to offer your probate services unless they initiated the contact. Written communications (letters, emails, online content) are generally permitted under Rule 7.2 as long as they are truthful and not misleading, though some states require specific disclaimers on attorney advertisements.

The ethical line between educational content (permissible) and solicitation (restricted) is particularly important for probate attorneys who publish blog articles, social media content, or informational guides targeting families in need of probate services. Our platform at Made For Law for law firms is designed to support attorneys in ethical client acquisition through educational tools and directory listings.

Self-Dealing and Dual-Role Pitfalls

Self-dealing—transactions in which the attorney benefits personally from the estate they are administering—is one of the most serious ethical violations in probate practice and one of the most common grounds for disciplinary action. Self-dealing can take many forms: the attorney-executor who receives both legal fees and executor compensation, the attorney who purchases estate assets at below-market prices, the attorney who hires their own firm to perform legal work for the estate without informed consent, and the attorney who names themselves as a beneficiary in a client’s will.

Model Rule 1.8(a) requires that any business transaction between attorney and client (or former client) be fair and reasonable, be fully disclosed to the client in writing, give the client a reasonable opportunity to seek independent counsel, and be consented to by the client in writing. Model Rule 1.8(c) prohibits an attorney from soliciting a substantial gift from a client, including a testamentary gift, unless the client is related to the attorney. These rules are strictly enforced in the probate context because of the inherent vulnerability of estate planning clients (who are often elderly) and because self-dealing is difficult to detect during the client’s lifetime.

The attorney who serves as both legal counsel and executor faces heightened scrutiny. While dual service is not prohibited per se, it creates inherent conflicts: the attorney sets their own legal fees (subject to court approval), the attorney decides how to allocate time between legal services and executor services (affecting the split between legal fees and executor compensation), and the attorney controls the information flow to beneficiaries who might otherwise challenge the fees.

Best practice is to either serve as attorney or executor, but not both, unless the estate is simple and the beneficiaries are cooperative. If you do serve in both roles, disclose the dual capacity to all beneficiaries, keep meticulous time records showing the allocation between legal and executor services, and seek court approval of both forms of compensation. For guidance on structuring fee arrangements to avoid these pitfalls, see our article on fee agreements in probate practice.

Communicating with Represented and Unrepresented Parties

Model Rule 4.2 prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. In probate practice, this rule applies when you represent the executor and a beneficiary is represented by their own counsel. All communications with the represented beneficiary about the estate administration must go through their attorney.

Model Rule 4.3 governs communications with unrepresented persons—a far more common scenario in probate, where most beneficiaries do not retain counsel. The rule requires the attorney to avoid stating or implying that they are disinterested, to make reasonable efforts to correct any misunderstanding about the attorney’s role, and not to give legal advice to the unrepresented person (other than the advice to secure counsel) if the attorney knows or reasonably should know that the person’s interests conflict with the client’s interests.

In probate, the Rule 4.3 obligation is particularly important because beneficiaries often assume the estate attorney is “their” attorney as well. They call with questions about their inheritance, ask for advice on tax implications, and expect the attorney to advocate for their interests.

The ethical attorney must make clear at the outset—in the engagement letter, in initial correspondence with beneficiaries, and in every substantive conversation—that the attorney represents the executor (or the estate) and not the individual beneficiaries. A brief, clearly worded letter to all beneficiaries at the beginning of the administration, explaining the attorney’s role and advising beneficiaries to consult their own counsel if they have concerns, is an essential protective measure. For guidance on client intake procedures that address these issues, see our article on client intake best practices.

Malpractice Risks Unique to Probate Practice

Probate malpractice claims differ from those in other practice areas in several important respects. First, the “client” who suffered the harm may not be the person bringing the claim.

Beneficiaries who are not the attorney’s clients may nonetheless have standing to bring malpractice claims if they can show they were intended third-party beneficiaries of the attorney’s services—a theory recognized in many jurisdictions. Second, the harm may not be discovered until years after the representation, when the testator dies and the flaws in the estate plan become apparent. Many states have adopted the “discovery rule” for malpractice statutes of limitation, which tolls the limitations period until the plaintiff knew or should have known of the malpractice.

Common sources of probate malpractice liability include: failure to execute testamentary documents properly (resulting in a will that is not valid under state law), failure to update estate plans after changes in the law (such as changes to the estate tax exemption), failure to advise on beneficiary designations that conflict with the will or trust, failure to identify and address tax planning opportunities (resulting in unnecessary estate tax exposure), conflicts of interest that result in a biased estate plan, and missed deadlines (failure to file tax returns, failure to provide required notices, failure to file claims within the creditor claim period).

The best defense against malpractice is a systematic approach to practice: use checklists for every engagement, document every client meeting and decision, keep current on changes in the law through CLE and professional reading, carry adequate malpractice insurance with coverage limits appropriate for your practice, and do not accept engagements outside your competence. The attorneys most vulnerable to malpractice claims are those who treat probate as a part-time practice, handling a few matters per year without the systems, training, and focus that a dedicated probate practice requires.

For state-specific probate requirements and calculations, explore our tools for California, New York, Florida, and Texas. For more on how probate mediation can help resolve disputes before they escalate to malpractice-risk litigation, see our dedicated article.