Finding the right attorney to plan your estate can be a significant challenge. It may be the first contact that you will ever have with an attorney. What qualities should you look for in an estate planning attorney?
Do not accept on faith that any attorney who says that he or she can do estate planning is competent to handle your estate planning matters Such confidence is frequently misplaced because many attorneys have little training or actual experience in this complex area of the law.
A comprehensive definition of estate planning is: I want to control my property while I’m alive and well, plan for me and my loved ones if I become mentally disabled, and when I’m gone, I want to give what I have to whom I want when I want and the way I want, and if I can, I want to save taxes, fees and costs. An estate planning attorney should be able to address all of these matters for you.
You may be tempted to shop for price rather than quality in legal services. When it comes to obtaining quality estate planning services, it is as with most of the areas of life, you get what you pay for. Your selection should be made with care and should be based on much more than just the cost.
When you are interviewing an estate planning attorney, interview only attorneys whose practices are dedicated to estate planning and elder law. Other attorneys just simply do not have the knowledge or experience to plan your estate properly.
Planning for you and your estate both during your lifetime and after your death is the equivalent of legal heart surgery. You don’t go to a family doctor for heart surgery; why would you go to a general practitioner for estate planning services? A qualified estate planning attorney should have a working knowledge of six areas of the law: estate planning, elder law, probate, taxation, real estate and business.
It’s pretty obvious that an estate planning attorney should know about estate planning. Estate planning includes knowing when to use a trust, a will, and financial and healthcare powers of attorney and how to draft them. An attorney who only drafts wills and not trusts or combines financial and healthcare powers of attorney in a single document lacks sufficient knowledge to properly advise you on estate planning.
Elder law is an area of legal practice focusing on those issues that affect seniors. It includes governmental benefits such as Social Security, Medicare, Medicaid and VA benefits. It also includes counselling in the areas of caregiving and living arrangement options. Without a working knowledge of elder law, an attorney would not be able to put the proper instructions in your will, trust or powers of attorney.
Although one of your goals may be to stay out of the probate court, there may arise situations in which you may find yourself in probate court, such as if loved ones attempt to get a guardianship or conservatorship over you. Familiarity with the probate court and various types of its proceedings would allow an attorney to properly advise you in these and other situations.
When you are going through the estate planning process, you or your loved ones may ask about the income taxation of retirement assets or the gift and estate taxation or income tax basis of gifts and inheritances. These are just some of the tax questions we regularly hear from our estate planning and elder law clients. We would not be able to draft and implement an appropriate plan for our clients without knowledge and experience in these and other taxation areas
Most of our estate planning clients own their own home. Many of them also own investment, rental or business real estate. Deeds look deceptively simple. However, a single word can dramatically affect your interest in the property. A thorough understanding of deeds and real estate ownership interests is a requirement for any attorney planning and/or executing the transfer of those real estate interests either during your lifetime or after your death.
If an attorney does any amount of estate planning, he or she will undoubtedly come across clients with rental or investment real estate, a business or substantial amounts of investable assets. If you are in that situation, it is imperative that your attorney have a handle on the ins and outs of the various forms of business entities, including C-corporations, S-corporations, partnerships and limited liability companies. With the knowledge of the tax, liability, succession and other ramifications of these entities, your attorney would be able to properly advise you of your options.
On almost a daily basis, we see estate planning documents drafted by attorneys who lack sufficient knowledge in all six of these areas of the law. These documents inevitably are missing key instructions for certain circumstances for which the clients’ goals and objectives will not be met. The usual fix for these is drafting restated replacement documents with complete instructions to accomplish the clients’ wishes.
Finally, here are questions to ask your prospective estate planning attorney:
- What percentage of your practice is in estate planning and elder law?
- Do you offer comprehensive estate planning services including preparation of trusts and consultations regarding elder care, governmental benefits, probate, taxation, real estate and business?
- Will you help avoid the additional cost, delays, loss of privacy and other issues related to probate or do you earn your living by probating estates?
- How do you make sure that my assets are controlled by my instructions that are contained in my planning documents?
- How do you charge for your services, not only for the preparation of the estate plan, but the cost to administer my plan upon my mental disability and upon my death?
- How do you stay current with the laws and with the changes in the estate planning field?
- What should I do to prepare for our consultation? Do you expect any “homework” from me?
- How often should my estate plan be reviewed and updated?
- What type of service should I expect from you?
Please tell me about your interest, background and experience in the estate planning field.
Estate planning involves reviewing and analyzing your desires and finances today to ensure that you and your family are prepared for tomorrow. It requires that you have a team of qualified professionals that will work together to make sure you receive an integrated estate plan of the highest quality. You deserve the best estate planning services possible. Your estate planning attorney should have the training and experience to turn your estate planning desires into reality.
By: Matthew M. Wallace, CPA, JD
Published edited November 10, 2013 in The Times Herald newspaper, Port Huron, Michigan as: How to select an estate planning lawyer