It is usually preferable to have a trusted family member, friend, or professional trust company, bank trust department or other professional such as a long time Certified Public Accountant (CPA) serve as the Trustee of one’s Trust and that is precisely what I routinely advise my clients.
But sometimes they don’t have that kind of relationship or they don’t want to burden their loved ones with that responsibility. Sometimes clients don’t have enough assets to justify paying the higher fees a bank or trust company would charge, and sometimes they just feels very strongly about paying a less personal bank or trust company that way.
In my small, local law firm practice, it is not uncommon for my clients and I to develop a comfortable, trusting relationship. It often flows from the nature of the intimate family and financial details involved in interviewing and counseling them to be able to prepare highly personalized legal documents regarding their lifetime health care and the management and distribution of everything they may have, according to their wishes. Sometimes that results in me being the person most knowledgeable about and committed to helping my clients effectuate their wishes.
In that way, I am able to serve as a resource for my clients’ loved ones and trusted agents if they so choose, and which I am honored to do. But sometimes, clients ask me to serve as their Personal Representative (formerly, but really not long enough ago, called “Executrix” for a woman and “Executor for a man” under a Will) and Trustee (of a Trust). That’s what appears to have happened with Harper Lee and her longtime lawyer, whom Lee named as her Personal Representative and Trustee.
There is a potential conflict of interest, however, whenever a lawyer who drafts a Will or Trust is also named to serve as the Personal Representative for the estate and Trustee of the trust because the lawyer will be entitled to reasonable compensation, which often means the lawyer’s usual and customary legal fees, and also almost certainly use her own law firm to do the work. Therefore, it is common (and good!) practice that whenever a lawyer serves in that kind of capacity, she makes full disclosure of the conflict of interest, explaining it all carefully to make sure the clients understand and consent to the lawyer serving despite those conflicts. The argument that Lee’s lawyer exerted undue influence seems from afar based more on frustration with her lawyer’s successful efforts to protect and preserve Lee’s desire that everyone respect her privacy.
Despite the New York Time’s successful lawsuit to have the public record of Harper Lee’s Last Will and Testament unsealed and made public, Lee’s lawyer’s efforts to keep Lee’s private wishes private was mostly successful. That’s because, rather than a simple Will that would specify all the details of who is to inherit what, when, and how, Lee’s lawyer used a much more private trust and a corresponding Pour-Over Will to handle those details. So the public can estimate the size of Lee’s financial legacy and we know some of her living heirs at law, but that’s about where it stops. The rest remains a mystery, as she wrote it.