After years of procrastination, you’ve finally scheduled your first visit with an estate planning attorney. But what does that mean as a practical matter? What do you do? What should you expect? Do you understand you should interview the lawyer to see if you really want to be there or are you just hoping he or she will like you enough to want you to come back?
I learned early on in my own law practice that many, if not most, potential clients have little idea of what to expect. They’re surprised to discover they really do have a choice, and they’re in the driver’s seat when it comes to the interview. They’re surprised to hear the word “interview” used in this context. Estate and business planning is a pretty specialized area. But many attorneys are simply too overwhelmed to treat it as such. Economically, they’re are unable to focus their practice and put all their eggs into one basket.
There are at least two times when the services of a good planning attorney becomes critical. One is when clients make their first visit. The second comes when children and other heirs must pick up the pieces after a death. Regardless of when it occurs, clients should be in interview mode. Is this going to be a good fit? What do you, as a prospective client, need to know to answer that question?
Here are some guidelines I’ve developed. I actually insert language into clients’ trust documents to assist their children and other heirs in finding a good estate planning attorney. These guidelines apply equally to the initial visit to begin the estate planning process as well as the “picking up the pieces” scenario. The following language is taken directly from trust documents to address loved ones:
We have designed our estate plan using a three-step strategy that involves receiving attorney counseling as opposed to mere word processing, formally updating our estate plan on a predetermined and ongoing basis and controlling the settlement process (including costs) of our estate plan after the death of each trust maker. Hopefully, we will have completed the first two steps during our lifetimes. After the death of each of us, it’s the responsibility of our trustee to implement the final step.
To control the settlement process of our estate plan after the death of each trust maker, we see the proper role of the estate planning attorney as a counselor for our family. Our estate planning attorney should counsel our family on how to use our estate plan for their benefit. With this goal in mind, we leave the following instructions regarding financial arrangements after the death of each trust maker:
With minor exceptions, the process for transferring trust assets after death mirrors the initial trust funding process. We believe fees for the transfer of assets after the death of each trust maker should be similar to those incurred during our lifetime. We direct our trustee to use the services of an attorney to assist in counseling regarding how to implement the transfer process. We see the proper role of the attorney from that point forward in the asset transfer process as a resource to be used only when problems arise that are beyond the capacity of our trustee to solve without professional assistance. We would like our trustee to hire an attorney who charges on a fixed-fee basis quoted in advance. Should the attorney base the fixed fee on a percentage of the estate, care should be taken the fee is below that customarily charged in probate matters. If no attorney can be located who will charge on this basis, our trustee may hire an attorney who will charge on an hourly basis. The attorney should provide an estimate of the total costs before the work begins and, preferably, a cap on the total cost.
To reduce the settlement costs of our estate plan, it’s imperative the cost of preparing and filing tax returns due upon the death of a trust maker — whether federal estate, state inheritance or both — be controlled. We would like our trustee to hire an attorney or certified public accountant to prepare and file tax returns who charges on a fixed-fee basis quoted in advance. Should the attorney or CPA base the fixed fee on a percentage of the estate, care should be taken the fee is below that customarily charged in probate matters. If no attorney or CPA can be located that will charge on this basis, our trustee may hire an attorney or CPA who will charge on an hourly basis. The attorney or CPA should provide an estimate of the total cost before the work begins and, preferably, a cap on the total cost.
Our estate plan is designed to avoid the necessity of a probate after the death of a trust maker. If assets have been left out of our trust inadvertently, however, a probate estate could need to be opened. Because the amount and nature of the assets left out of the trust can’t be determined in advance, our trustee could need to hire an attorney based on estimated costs. Under these circumstances, we would like our trustee to hire an attorney either on a fixed-fee basis quoted in advance or an hourly basis with an estimate of the total cost before the work begins and, preferably, a cap on the total cost. Should the attorney base the fixed fee on a percentage of the estate, care should be taken the fee is well below that customarily charged in probate matters.
Any attorney or CPA hired by our trustee pursuant should be unrelated by blood or marriage to any beneficiary under this agreement.
Reviewing these guidelines can go a long way in helping clients understand what they need to learn in that interview. Fashioning the questions is then fairly easy.