A trust attorney represents the person who hired them, and that person changes as the trust moves through its life. While the trust is being drafted, the attorney represents the settlor who is creating it. Once the trust is being administered, especially after the settlor’s death, the attorney represents the trustee. Beneficiaries are never the client, though they have more legal leverage over the attorney than most people assume. Understanding who a trust attorney represents at any given moment tells you whose interests the attorney is bound to protect, who holds the privilege, and whose lawyer you are actually talking to.
During Drafting, the Client Is the Settlor
When a trust is being created, the attorney works for the settlor, also called the grantor. The attorney’s job is to understand what the settlor wants done with their wealth and translate that into an enforceable document: the type of trust, the choice of trustees, the triggers and limits on distributions, and the flexibility to handle situations the settlor has not thought through.
Every conversation between the settlor and the drafting attorney is protected by attorney-client privilege. Future trustees and beneficiaries have no right to see those communications while the settlor is alive and competent. The duty of loyalty runs to the settlor alone. If a settlor wants to leave more to one child than another, the attorney’s job is to make that happen cleanly, not to lobby for a different outcome on behalf of someone who might inherit.
When Spouses Hire One Attorney Together
Married couples often use a single attorney to draft a joint trust or coordinate their plans. The arrangement is efficient and common, but the attorney now has two clients whose interests may not always line up. Spouses in a joint representation share the privilege with each other, which means neither can use the shared attorney to keep secrets from the other.
If the spouses’ interests diverge through divorce or disagreement, the attorney may have to withdraw from representing both. A New York appellate court looked at part of this dynamic in Feighan v. Feighan (2020), where an attorney had drafted one trust during a joint representation with both spouses in 2013 and a separate trust for the husband alone in 2016, after the wife was no longer a client. The court held that privilege protected the 2016 trust’s files because that was a different matter from the original joint engagement. The practical lesson for couples: shared representation means shared information, and once your interests split, you each need your own lawyer.
After the Settlor Dies, the Client Is the Trustee
When the settlor dies or becomes incapacitated and the trust becomes irrevocable, the client relationship shifts. The attorney now represents the trustee, the person or institution responsible for managing the assets and carrying out the settlor’s instructions. This is where confusion usually sets in. People assume the “trust’s lawyer” works for the trust itself or for the beneficiaries. Neither is correct. The client is the trustee acting in their fiduciary role.
That fiduciary role matters. The attorney advises the trustee on carrying out the duties the trust imposes, not on the trustee’s personal legal problems. The ABA’s Model Rules of Professional Conduct acknowledge the nuance, noting that when the client is a fiduciary, the lawyer “may be charged with special obligations in dealings with a beneficiary.”1American Bar Association. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer – Comment In practice, the trustee’s attorney cannot ignore beneficiaries the way an attorney for an ordinary private client might ignore an outside party. The attorney has to help the trustee meet obligations that exist specifically for the beneficiaries’ protection.
Why the Beneficiaries Are Not the Client
The attorney working with the trustee does not represent the beneficiaries, even though everything the trustee does is theoretically for their benefit. The reason is practical. The trustee and the beneficiaries can have conflicting interests. A beneficiary might want an immediate distribution. The trustee, applying the trust’s terms or exercising discretion, might say no. An attorney who represented both sides could not give honest advice to either.
The separation lets the attorney be candid with the trustee. The attorney can say “you have discretion to deny this request, and here is why that position is defensible” without simultaneously owing a duty to the person making the request. If you are a beneficiary who disagrees with how a trustee is managing your trust, the trustee’s attorney is not your advocate. You need your own lawyer.
The Fiduciary Exception to Attorney-Client Privilege
The trustee’s privilege is not as airtight as it would be for an ordinary private client. Under a doctrine called the fiduciary exception, courts in many jurisdictions allow beneficiaries to reach otherwise privileged communications between the trustee and the trustee’s attorney when the communications involved advice about administering the trust.
The logic goes back to English trust law and was brought into American courts most notably in Riggs National Bank v. Zimmer (1976), where a Delaware court reasoned that the beneficiaries were, in a sense, the “real clients” because the trustee was managing assets on their behalf. The exception does not reach every communication. It generally covers advice about how to administer the trust. It typically does not reach communications where the trustee sought personal legal advice, like defending against a claim of breach.
Not every state recognizes the exception, and the scope varies among those that do. A trustee who assumes every conversation with the lawyer is completely shielded from beneficiaries may be wrong, and this is worth clarifying with the attorney at the start of any administration.
When Beneficiaries Can Sue the Drafting Attorney
Although the drafting attorney’s client was the settlor, a majority of U.S. jurisdictions now allow beneficiaries to sue that attorney for malpractice if a drafting error defeated or diminished what the settlor intended. This is a departure from the traditional “privity” rule, which would have required a direct attorney-client relationship between the person suing and the attorney being sued. Since the settlor is usually deceased by the time an error surfaces, strict privity would mean no one could ever hold the attorney accountable.
Courts have taken several approaches to deciding when beneficiaries have standing. Some use a balancing test weighing factors like foreseeability of harm, certainty of injury, and the closeness between the attorney’s error and the beneficiary’s loss. Others limit claims to situations where the attorney’s negligence directly frustrated the settlor’s intent as expressed in the document. A third approach treats the beneficiary as a third-party beneficiary of the contract between the settlor and the attorney. The South Carolina Supreme Court, in Fabian v. Lindsay (2014), adopted both the balancing test and the contract theory, reasoning that when a client hires an attorney specifically to provide for beneficiaries, those beneficiaries are a direct and inescapable part of the attorney’s duty.
This does not open the door to suing because a beneficiary is unhappy with the trust’s terms. The claim has to be that the attorney made an error that caused the document to diverge from what the settlor actually wanted. Disagreeing with the settlor’s choices is not malpractice.
Who Pays the Attorney
Attorney fees in trust matters usually come from the trust itself, with limits. Under the Uniform Trust Code framework adopted in most states, a trustee is entitled to reimbursement from trust assets for expenses properly incurred during administration, including legal fees. The trustee is managing assets for the beneficiaries’ benefit, so the trust bears the cost of professional guidance needed to do that job correctly.
Litigation complicates the picture. A trustee sued by a beneficiary will typically use trust assets to fund the defense, at least initially, because courts presume the trustee acted properly until a breach is proven. If the trustee is found to have breached their fiduciary duty, the outcome flips. The trustee may be ordered to reimburse the trust for every dollar of legal fees the trust paid on their behalf, on top of damages. In cases of bad faith or intentional wrongdoing, some courts also require the trustee to pay the beneficiary’s attorney fees.
The reverse applies. A beneficiary who brings a meritless claim can be ordered to pay the trustee’s legal costs. When a beneficiary’s lawsuit produces a result that genuinely benefits the trust, the court can award fees to the beneficiary from trust assets. Courts have broad discretion to allocate legal costs based on who acted reasonably.
From a beneficiary’s point of view, this can feel lopsided. The attorney defending the trustee is being paid from the trust, which means an inheritance is helping fund the other side’s defense. That is the default until the court decides otherwise. Beneficiaries should expect to fund their own representation out of pocket during the litigation, with no guarantee of reimbursement even if they prevail.
When the Drafting Attorney Stays on as the Trustee’s Attorney
It is common for the attorney who drafted the trust to continue on as the trustee’s attorney during administration. The attorney already knows the settlor’s intentions and the trust’s structure. But this dual role carries risk. If a dispute arises about what the settlor actually intended, the drafting attorney is potentially both a witness to the settlor’s wishes and an advocate for the trustee’s interpretation. Those roles can collide.
A beneficiary challenging the trustee’s reading of the document might subpoena the drafting attorney to testify about what the settlor said during planning. If the attorney is simultaneously defending the trustee, the conflict becomes unmanageable. In some cases the prudent move is for the trustee to hire separate litigation counsel when a dispute arises, even if the drafting attorney continues to handle routine administration.