An attorney cannot reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation of the client. This duty of non-disclosure is often referred to as the attorney-client privilege. But what happens to this privilege when the client dies? For example, an attorney assists a client in his or her estate planning, specifically the preparation and execution of the client’s revocable trust agreement, last will and testament and related estate planning documents. During the course of the representation, disclosures are made by the client to the attorney regarding the assets and liabilities of the client, the family dynamics, and the intent of the client. Does the confidentiality of this information survive the death of the client and continue on? The short answer is yes, with certain exceptions.
The general rule in Nevada is that the attorney-client privilege survives the death of a client. However, the personal representative of the estate of the deceased client is entitled to any information from the attorney as a matter of necessity since the personal representative is charged with duties that include the carrying out the terms of the last will and testament, preserving and safeguarding the assets of the estate, and filing a written inventory of the estate assets. Essentially, the personal representative steps into the shoes of the deceased client. The attorney-client privilege passes to the personal representative of the estate of the deceased client and can be asserted by the personal representative.
The attorney-client privilege also passes to the successor trustee of the revocable trust of the deceased client and can be asserted by the successor trustee. The successor trustee is again entitled to any information from the attorney as a matter of necessity. Also under Nevada law, a beneficiary of a trust is entitled to a copy of the relevant portions of a trust agreement regarding his or her bequest in most cases.
One very common exception is when the validity of the terms of the last will and testament or of a revocable trust is challenged. For example, a party brings an action alleging that the last will and testament or the revocable trust is invalid because the decedent was unduly influenced in the making of the will or trust. There is no privilege as to a communication relevant to an issue between parties who claim through the same deceased client. A related exception is that there is no privilege as to a communication relevant to an issue concerning an attested document such as a last will and testament to which the attorney is an attesting witness. These exceptions are practical necessities to enable a party to establish the validity or invalidity of a will or trust of a decedent.
In summary, an estate planning client can rest assured that information furnished to an attorney remains confidential after his or her death with certain, practical exceptions.