After a client dies, who can a lawyer give the estate-planning file to: the named executor, the spouse, the disinherited children?

Plain-English summary

A lawyer drafted a will and trust for a client whose plan benefits the spouse but not the children and names a non-family fiduciary. After the client dies, the spouse, the fiduciary, and the children each separately ask for the estate-planning file. The lawyer asks what duties she has in releasing the documents and file, and whether those duties change once the children file a will or trust contest.

The committee starts with the final will: under 755 ILCS 5/6-1(a) the lawyer must file it with the clerk and can direct any requester to the clerk's records. Everything else is governed by Rule 1.6. The lawyer first checks for the client's express consent (many estate-planning engagement letters or file memos specify who may receive what after death). Absent express consent, implied consent under Comment 5 controls: because the fiduciary needs the executed documents to effectuate the plan, the lawyer may give the fiduciary the final will, operative trust documents, amendments, and the file portions (such as asset information) that help carry out the client's intent. The committee notes Illinois takes the minority view that implied consent does not extend to the entire file, citing Adler v. Greenfield (an estate administrator cannot waive the decedent's privilege).

For the spouse, the committee says that if the fiduciary has not told the spouse she is a beneficiary and the spouse is not receiving her benefit, the lawyer may disclose enough for the spouse to enforce her rights, as impliedly authorized to carry out the representation (citing the ACTEC Commentaries and Florida Opinion 10-3), limited to as little as possible; the analysis differs if the spouse was a co-client. For the children, Rule 1.6 generally bars disclosure, but the lawyer may share limited information (for example about the execution of the documents) if doing so would forestall litigation and preserve estate resources. Once the children file a will or trust contest, the testamentary exception to the privilege may let them obtain the file by subpoena (Eizenga v. Unity Christian School), but the committee says the lawyer should not disclose until a contest is filed and a subpoena issues, and even then should object and produce only after a court orders compliance under Rule 1.6(b)(6) (citing ABA Formal Opinion 473).

In practice

Under this opinion, an Illinois estate-planning lawyer fielding post-death file requests should first look for the client's express consent, then treat the named fiduciary as entitled (by implied consent) to the executed documents and the file portions needed to administer the plan, but not the whole file. The opinion treats beneficiary disclosure as limited to what lets the beneficiary enforce her rights or forestall litigation, treats disclosure to disinherited heirs as barred absent a litigation-forestalling rationale, and directs the lawyer to object to a will-contest subpoena and produce only on a court order.

Common questions

Q: Can the lawyer give the executor the estate-planning file?

A: The named fiduciary is entitled, by implied consent, to the executed documents and the file portions needed to carry out the client's intent (such as asset information), but the committee says Illinois does not extend implied consent to the entire file.

Q: What about the surviving spouse who is a beneficiary?

A: If the fiduciary has not informed the spouse of her benefit and she is not receiving it, the lawyer may disclose enough for the spouse to enforce her rights, limited to as little information as possible, unless the spouse was a co-client with broader access.

Q: Can the disinherited children get the file?

A: Generally no under Rule 1.6, though the lawyer may share limited information (for example about execution) if it would forestall litigation. After they file a will or trust contest, the testamentary exception may allow access by subpoena.

Q: Must the lawyer comply with a will-contest subpoena?

A: Not automatically. The committee says the lawyer should object to the subpoena and produce the documents only after a court enters an order to comply, because the client has died and cannot be consulted (citing ABA Formal Op. 473).

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.6 (confidentiality), in particular the express-consent and implied-consent (Comment 5) provisions and the 1.6(b)(6) exception for complying with other law or a court order. Rule 1.6 tracks Model Rule 1.6. The committee relies on the Illinois will-filing statute (755 ILCS 5/6-1(a)), Illinois case law on the privilege after death and the testamentary exception (Adler v. Greenfield; Eizenga v. Unity Christian School), the ACTEC Commentaries, and ABA Formal Opinion 473 on subpoenas.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / IL RPC 1.6 (confidentiality; implied consent Comment 5; 1.6(b)(6))

Statutes:

• 755 ILCS 5/6-1(a) (duty to file a decedent's will with the clerk)

Cases:

• Adler v. Greenfield, 2013 IL App (1st) 121066 (administrator cannot waive decedent's privilege)
• Eizenga v. Unity Christian School of Fulton, 2016 IL App (3d) 150519 (testamentary exception)

Other opinions cited:

• ABA Formal Op. 473 (responding to subpoenas for client information)
• Florida Ethics Op. 10-3; ACTEC Commentaries to the Model Rules

See also

• ISBA Ethics Op. 21-01: Surviving Spouse as Estate Administrator and Individually
• NY State Bar Op. 970: Disclosing a Deceased Client's File to the Executor
• ABA Formal Op. 473: Subpoena or Compulsory Process for Client Information

Source

• Landing page: https://www.isba.org/ethics/opinions/2102