The Job That Sees It: The Trusts and Estates Lawyer

The Million Dollar Question: A married couple hires one lawyer to plan both of their estates. Midway through, the husband tells the lawyer privately that he has a child his wife doesn’t know about, and he wants the child provided for. What happens next?
A) The lawyer drafts the gift and keeps the secret — that’s attorney-client privilege B) The lawyer must tell the wife C) It depends on what the couple agreed to at the start, which state they’re in, and the lawyer may have to quit representing both of them D) The lawyer reports it to the probate court

Read on for the answer.

Most of the people who work around a fortune see one part of it. The banker sees the balance sheet. The estate manager, two installments ago in this series, sees what the house costs on a Tuesday. The flight attendant sees the principal unguarded at 45,000 feet.

The trusts and estates lawyer sees something none of them do: the conversation about what happens when the person at the center of the fortune dies. Who gets what. Who gets nothing. Which child is trusted with money and which is given a trustee instead. Whether the second spouse is provided for, and how generously, and with what conditions. Which secrets will come out when the will is read — and which ones the documents are drafted to keep in.

That conversation happens in a small room with very few people in it, and the lawyer is usually the only one who is not family. This piece reconstructs the job from the profession’s own ethics guidance, statutes, court records, and fee data. It turns out to be less about tax than outsiders assume, and more about loyalty — specifically, whom the lawyer actually works for when everyone at the table is related.

The room nobody else is in

Practitioners call the work “trusts and estates,” or T&E; in Britain and much of the international market it is “private client.” It has three parts. Planning happens while the client is alive: wills, revocable and irrevocable trusts, lifetime gifts, powers of attorney, health-care directives, and the structuring of business interests so they can pass to the next generation. Administration happens after a death: probating the will, marshaling assets, filing the estate tax return, advising the executor or trustee, and distributing what is left. Litigation is what happens when either goes wrong: will contests, trust disputes, fiduciary surcharge actions, and malpractice claims against the lawyer who did the planning.

At the $1M–$5M level, the job is mostly documents: a will, a revocable trust to avoid probate, beneficiary designations that match the plan. At $30M–$100M, it becomes architecture: irrevocable trusts holding a business interest, a GRAT or two, a family limited partnership, coordination with an accountant and an investment adviser. At $1B and above, the T&E lawyer is one node in an apparatus that often includes a single-family office, trust companies in several states, and a standing calendar of family governance meetings — the world described in this site’s piece on the family office.

What stays constant is the meeting itself. The documents are the output; the input is a series of conversations in which a client explains, sometimes for the first time out loud, what they think of their children. The American College of Trust and Estate Counsel (ACTEC), the field’s peer-elected professional body, publishes a 244-page set of Commentaries on how the general rules of legal ethics apply to estate work, and much of it concerns not tax but the problems of representing people who love, resent, and depend on each other.

Who the client is

The answer to the Million Dollar Question is C, and the reason is the central ethical problem of the profession.

Most estate planning for married couples is done by one lawyer for both spouses. It is cheaper, and the plans are interlocking: one spouse’s will usually leaves property in trust for the other. The ACTEC Commentaries say that representing both spouses jointly is the most common arrangement, and that trying to represent each spouse separately while planning for both is “generally inconsistent with the lawyer’s duty of loyalty to each client.” Either the lawyer represents them together, or the lawyer represents only one of them.

Joint representation has a built-in trap: what happens when one spouse tells the lawyer something they don’t want the other to know? The Commentaries acknowledge that “the law is unclear as to whether all information must be shared” between joint clients, and they recommend the obvious defense — ask both clients, at the outset and preferably in writing, to agree that anything either one tells the lawyer can be shared with the other. Their own examples show the range. A past affair, the Commentaries suggest, might be irrelevant to the estate plan and need not be passed on. But “After she signs the trust agreement, I intend to leave her” or “All of the insurance policies on my life that name her as beneficiary have lapsed” are another matter: without the other spouse’s informed consent, the lawyer should not draft anything that damages that spouse’s interests, and may have to withdraw.

The two authorities most often cited on this problem came out opposite ways, on facts that differ in telling respects. In A. v. B. v. Hill Wallack (1999), the Supreme Court of New Jersey dealt with a law firm jointly planning a husband’s and wife’s estates that learned — not from the husband, but from the child’s mother, who had separately retained the firm for a paternity action — that the husband had a child born outside the marriage. The court held the firm was permitted to tell the wife that the child existed, though not who the child was, relying on New Jersey’s unusually broad fraud exception to confidentiality and on the couple’s signed conflict-waiver letter, which warned that information from one spouse could become available to the other. In Ethics Opinion 95-4 (1997), the Florida Bar considered a husband who told the couple’s lawyer directly that he had signed a codicil, drafted by another firm, leaving substantial gifts to a woman with whom he was having an affair. Its answer was the opposite: the lawyer may not tell the wife without the husband’s consent, and must withdraw from representing both of them.

So the honest answer is that it depends on the engagement letter, the state, and the nature of the secret — and that withdrawal is a real possibility. A withdrawal carries its own problem, which the Commentaries name directly: a letter of withdrawal “may arouse the other client’s suspicions to the point that the communicating client or the lawyer may ultimately be required to disclose the information.” That is why ACTEC tells lawyers to settle the rules of the room at the first meeting, before anyone has a secret to keep.

The same loyalty problem runs across generations. Parents often want the family lawyer to plan for their adult children too; ACTEC notes that a lawyer separately representing a parent and a child may struggle to advise the child “without disclosing a confidence” of the parent “whose estate plan differs from what the child is expecting.” The lawyer may know, years in advance, which sibling is getting less.

The number that changed in 2026

For a generation, the federal estate tax set the pace of this work. The One Big Beautiful Bill Act, signed on July 4, 2025, set the basic exclusion amount — the sum a person can pass free of federal estate and gift tax, during life and at death combined — at $15 million per person starting in 2026, indexed to inflation after that, and removed the scheduled expiration that would have roughly halved it. The IRS confirmed the figure in its 2026 inflation adjustments: “Estates of decedents who die during 2026 have a basic exclusion amount of $15,000,000.” Above it, the top rate is 40%.

A married couple can effectively double that through portability: under 26 U.S.C. § 2010(c), a surviving spouse can claim the deceased spouse’s unused exclusion. The catch is that the election has to be made on a timely estate tax return, even when no tax is owed — a form small estates rarely bother with. Revenue Procedure 2022-32 lets estates make a late election for up to five years after death. Missing even that window can be costly.

The other workhorse is the annual gift exclusion, which remains at $19,000 per recipient for 2026 — $38,000 for a couple giving together — and doesn’t touch the lifetime exclusion. A couple with three children and six grandchildren can move $342,000 a year out of their estate without using any of it. (If one spouse funds all the gifts and the couple elects to split them, a gift tax return is still required.)

What this does to the job is the interesting part. With a couple able to shelter roughly $30 million, federal estate tax is now a problem for a narrow slice of households — most of them in the $30M–$100M band and above. (State estate and inheritance taxes, with far lower thresholds in some states, remain a live issue below that line.) Below the line, the T&E lawyer’s value shifts toward income tax — keeping assets in the estate so they get a step-up in basis under § 1014 rather than giving them away during life — and toward the non-tax questions that were always the real work: control, privacy, incapacity, second marriages, and children who aren’t ready. The site’s piece on taxes covers the structures; this piece is about the person who explains them to the family.

What it costs, and what it pays

Fee data for this profession is plentiful and inconsistent, because the sources measure different markets. At the broad-market end, Clio’s 2025 Legal Trends Report, drawn from its mostly small-firm user base, puts the average lawyer’s hourly rate for wills and estates work at $371, and for trusts at $397. That is roughly the market serving the $1M–$5M client: a flat fee for a will-and-trust package, hourly for anything unusual.

At the other end, large-firm partners’ rates are not published by practice area. What the market data does show is direction: Thomson Reuters’ 2026 rates report found worked rates at Am Law 100 firms up 9.4% in the first half of 2025, against 2.8% inflation. Private-client partners at those firms work within the same rate structures as their corporate colleagues, which puts a senior New York T&E partner at a multiple of the Clio average; nobody publishes a reliable median for it.

Some states sidestep the hourly question for probate entirely. California sets the attorney’s fee for ordinary probate work by statute, as a percentage of the estate accounted for: under Probate Code § 10810, 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, 0.5% of the next $15 million, and “a reasonable amount to be determined by the court” above $25 million. On a $25 million estate, that schedule produces $188,000 for ordinary services — and the executor is entitled to a parallel statutory commission. It is a large part of why the revocable trust, which keeps assets out of probate, is so common among affluent Californians.

The lawyers themselves are paid unevenly. The Bureau of Labor Statistics does not break out estate lawyers; for all lawyers, it reports a median wage of $159,670 as of May 2025. Large firms pay associates on a common lockstep scale, with first-year salaries at the top firms at $235,000 since a mid-2026 market raise — but T&E groups are small inside those firms, and much of the practice sits in boutiques, mid-size firms, and bank trust departments.

The profession’s real credential is ACTEC fellowship. You can’t apply. Under ACTEC’s own rules, a candidate must have been “predominantly in the active practice of trust and estate law for at least ten years,” must be nominated by an existing Fellow, and is polled among Fellows in their jurisdiction and reviewed by state and national committees, a process ACTEC says usually takes six to nine months. The College, established in 1949, describes itself as more than 2,600 lawyers and law professors. In a field where specialist certification exists only state by state, “ACTEC Fellow” is the closest thing to a national mark of standing.

Trusts that outlive everyone in the room

The T&E lawyer’s most consequential tool is time. A will speaks once; a trust can keep speaking for generations, and the lawyer writes its voice.

For centuries, the rule against perpetuities capped how long a trust could last — roughly a lifetime plus 21 years. That cap has largely been dismantled. In 1983 South Dakota declared that “the common-law rule against perpetuities is not in force in this state” — a change originally meant to benefit the Homestake Mining Company — and the trust industry followed the opening. South Dakota trust companies reported more than $600 billion in assets at the end of 2021, up from about $104 billion a decade earlier, according to the state’s Division of Banking. Nevada allows trusts to run 365 years; Delaware has long competed for the same business. The result is the dynasty trust: a trust designed to hold family wealth outside every beneficiary’s taxable estate for as long as state law allows.

A trust built to last 150 years has a problem its drafter cannot solve: nobody knows what the world, the tax code, or the great-grandchildren will look like. The profession’s answer is a set of escape hatches written now for people not yet born:

• Trust protectors — individuals given defined powers to amend administrative terms, change the governing state, or replace trustees. Whoever holds those powers holds real control over the money decades after the drafter has retired. Directed-trust statutes, including the Uniform Law Commission’s 2017 Uniform Directed Trust Act, give these roles legal footing.
• Decanting — pouring the assets of an old trust into a new one with better terms, under a trustee’s existing discretion. New York enacted the first decanting statute in 1992; many states have followed.
• Letters of wishes — non-binding letters telling the trustee what the trust’s creator hopes the money will do. They carry no legal force and enormous practical weight.

Then there is the human machinery. At the upper bands, the T&E lawyer often helps run the first family meeting, where adult children are told roughly what exists, how it is held, and what is expected of them — a moment that has spawned boot camps teaching heirs how to inherit. The lawyer is also often the one who raises a prenuptial agreement for the heir. ACTEC cautions against one lawyer representing both parties to “an inherently adversarial contract (e.g., a marital property agreement),” so the future in-law is usually sent to a lawyer of their own. Trusts do some of the protecting quietly: property in a well-drafted spendthrift trust is generally harder for a beneficiary’s divorcing spouse to reach than property given outright, a dynamic covered in the site’s piece on marriage and prenups.

The ethics rules draw one firm line through all this intimacy. ABA Model Rule 1.8(c) bars a lawyer from soliciting a substantial gift from a client, or drafting an instrument that gives the lawyer or the lawyer’s relatives one, unless the recipient is related to the client. A lawyer may be named executor or trustee — fiduciary commissions are a real part of some practices — but only with the client fully informed, because the person writing the will is the one person in a position to write themselves into it.

What the record shows

Because the conversations are privileged, the public record of this work is made almost entirely of failures, which map the job’s edges precisely.

The drafting error. The landmark case on whether disappointed heirs can sue the lawyer who wrote the will is Lucas v. Hamm (Cal. 1961). The beneficiaries alleged that the lawyer had drafted a trust that violated the rule against perpetuities, forcing them to settle for $75,000 less than the testator intended. The California Supreme Court held that intended beneficiaries can sue a drafting lawyer despite never having been the client — and then let the lawyer off anyway, because the rule was so treacherous that a lawyer of ordinary skill “might well have ‘fallen into the net which the Rule spreads for the unwary.’” The court quoted Harvard’s W. Barton Leach calling the rule a “technicality-ridden legal nightmare.”

The privity wall. Most states now follow California’s lead and let beneficiaries sue. A minority do not. In Barcelo v. Elliott (Tex. 1996), grandchildren alleged that a lawyer’s drafting errors had invalidated a trust meant for them; the Texas Supreme Court, 5–3, held they had no claim, because the lawyer’s client was their grandmother, not them. Justice John Cornyn’s dissent complained that the court was embracing “a rule recognized in only four states.” Texas later let an estate’s executors bring such claims, but the principle stands: in some states, the people a plan was designed to protect cannot sue when it fails.

The conditions a lawyer is asked to write. When Leona Helmsley died in 2007, her will left $12 million in trust for her Maltese, Trouble, and excluded two grandchildren for reasons it said were known to them. In 2008, Manhattan Surrogate Renee Roth reduced the dog’s trust to $2 million, sending the $10 million difference to Helmsley’s charitable trust. A T&E lawyer drafts what the client instructs; a court decides how much of it survives.

The fiduciary who betrays. The case most often cited as a warning is Brooke Astor’s. In 2009 a Manhattan jury convicted her son, Anthony Marshall, of first-degree grand larceny and other counts for taking money from her during her final years, and convicted his lawyer, Francis Morrissey, on all five counts against him, including forgery and scheming to defraud — the forgery tied to Astor’s signature on an amendment to her will. An appeals court affirmed both convictions in 2013. The lawyer near an elderly client’s documents holds a position of trust the legal system takes seriously enough to prosecute.

What happens when there is no lawyer at all. Prince died in 2016 without a will. The estate’s administrator valued it at about $82.3 million; the IRS said $163.2 million; the parties settled on $156.4 million, made public in January 2022, nearly six years after his death. Aretha Franklin, who died in 2018, left no formal will either, only handwritten documents found in her home; in 2023 a Michigan jury decided that a 2014 document found under a couch cushion was a valid will, after years of dispute among her sons. Neither case reflects badly on anyone; both show what the T&E lawyer’s absence costs: years, legal fees, and a family conversation that ends up happening in a courtroom.

What people get wrong

That the job is mainly about avoiding tax. At the top it still is, partly; Audrey Walton’s 1993 zeroed-out GRATs, upheld by the Tax Court in Walton v. Commissioner (2000), remain the textbook case, covered in this site’s Walton piece. But with a $15 million per-person exclusion, most clients of most T&E lawyers will never owe federal estate tax.

That the lawyer works for “the family.” There is no such client. The lawyer works for the specific people who signed the engagement letter. Children, grandchildren, and second spouses who assume the family lawyer is their lawyer are often wrong — and in states like Texas, they may have no claim even when the plan fails them. Between joint clients, meanwhile, confidentiality may not hold: the privilege protects a couple from the outside world, not necessarily from each other.

That a handwritten will is a cheap substitute. Sometimes it works: Franklin’s couch-cushion document was upheld. It also took a jury trial, nearly five years after her death, to find that out. The cost of not hiring the lawyer doesn’t disappear; it moves to the heirs.

Bottom line

The trusts and estates lawyer is the one professional whose work product is designed to be read after the client is gone. Everyone else around a fortune serves the living principal; the T&E lawyer serves a future version of the family that the client imagines and sometimes tries to control from beyond the grave.

That is why the Million Dollar Question has no clean answer. New Jersey’s highest court let a firm tell a wife about a hidden child it learned of from another client; Florida’s bar barred a lawyer from revealing a husband’s confided gift to his mistress and required withdrawal. The rules are unsettled because the situation is inherently unstable: one lawyer, two clients, and a document that will eventually tell everyone what one of them wanted.

What the job sees, in the end, is the family as the person with the money actually ranks it. Nobody else in the room ever hears that list said out loud.

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Methods and sources. The ethics analysis relies on the ACTEC Commentaries, Sixth Edition (2023), chiefly on MRPC 1.6 and 1.7, and on Florida Bar Ethics Opinion 95-4 itself. A. v. B. v. Hill Wallack, 158 N.J. 51, 726 A.2d 924 (1999), Lucas v. Hamm, 56 Cal. 2d 583 (1961), and Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), are linked to the opinions; the ACTEC annotations describe Barcelo as 4–3, but the opinion shows five justices in the majority, three dissenting, and one not participating. The 2026 basic exclusion amount and annual exclusion are from IRS release IR-2025-103. The annual-exclusion arithmetic ($19,000 × 2 donors × 9 recipients = $342,000) and the California fee on a $25 million estate are this piece’s own, computed from the cited figures. The fee sources measure different markets and are not comparable; that senior large-firm T&E partners bill a multiple of the Clio average is an inference, not a published figure. South Dakota trust assets and the Homestake origin are as reported by KELOLAND News from Division of Banking figures for year-end 2021. The Helmsley, Astor, Prince, and Franklin accounts rely on contemporaneous reporting of court actions; the Astor convictions were affirmed on appeal, and nothing in this piece states or implies wrongdoing by any other person named. That the T&E lawyer is usually the only non-family member in the room is a characterization, not a measured finding.

Related reading: Trusts: How Wealth Is Held, Protected, and Passed On · Inheritance: The Transfer of Wealth Between Generations · Generational Wealth: How Long Fortunes Actually Last · Legacy: Inheritance, Heirs, and Family Continuity · The Job That Sees It: The Estate Manager · The Job That Sees It: The Private Flight Attendant