How to choose the right estate planning attorney (thebalance.com article)

June 4, 2018 - Posted by: admin - In category:

taxes - No Responses

Since there is no shortage of attorneys, you need the correct approach in choosing your estate planning attorney.

Expertise, experience and a good fit (both ways) are important considerations when someone is trying to determine who to retain for estate planning legal work.  A recent online article titled “How to Interview a Prospective Estate Planning Attorney” contains some helpful suggestions on this topic.  Among the questions addressed in the article are the following:

Let’s review some of these considerations.  First, the question about whether the attorney specializes in estate planning or is a do-everything attorney.  Estate planning is specialized legal work.  In fact, I would venture that there are few other areas of the law which are more specialized than estate planning.  This means that you are probably ok having a generalist attorney prepare a simple Will for you, but when it comes to trusts, special powers of attorney, medical directives and the like, you would do well to find someone who specializes in estate planning.  How will you know if you have found an estate planning specialist?  Start by asking how long it has been since the attorney last drafted a trust of any kind, including an irrevocable trust.  If you get a blank stare or if the answer is that the attorney has done “a few” trusts in the past, you will want to keep looking for an estate planning specialist.

Regarding years of experience, this is worth looking at, but should not be the only factor by any means.  Afterall, if nobody were qualified to practice law until they had been out of law school for ten or more years, we would have a lot of unemployed attorneys out there.  Further, it is of course always the older generation of attorneys who espouse the necessity of “years of experience” while the younger attorneys proclaim that they are trained in the most “modern” methods, etc.  No, there is no magical number of years or clients or cases that guarantees your attorney is all-knowing and has the requisite expertise you are looking for to justify the high price of legal services.  At the same time, if you are talking to an attorney who passed the bar last week, you likely will not want to retain that attorney to handle a complex estate planning matter (at least not without such attorney enlisting the assistance of a more seasoned attorney).

Trust funding is VERY important.  Without legally connected assets to the trust via direct ownership transfer, beneficiary designations in favor of the trust or something similar (depending on asset type), the trust is worthless–somewhat akin to an empty safe or an empty barn.  Many attorneys give clients detailed instructions as to how they can and should fund the trust, but then leave such vital work to the clients.  The reality is that in the vast majority of those situations, the trust funding work is neglected in whole or in part.  Again, an unfunded trust does not avoid probate and does not otherwise accomplish its intended purposes.  It is well-worth paying an attorney or firm to assist with the trust funding process–initially and over time.  This extra cost should be a good investment.  Don’t be one of those clients who tries to save money by insisting on “doing-it-yourself” trust funding, which eventually results in “never-got-done” trust funding.

The reality is that hourly billing is a hated practice.  Clients hate it, and most attorneys hate it.  One of the worst parts of my life as a big-firm attorney for almost ten years was having to account for almost every minute of my day and bill clients for phone calls, e-mails and just about everything else.  I was a junior attorney at a mega-firm, so I had no choice.  I do recognize that hourly billing is so much entrenched in the legal and accounting profession (among others) that it may take another generation of progressive thinkers before hourly billing becomes a thing of the past.  Thankfully, much of the work in estate planning can be done via a fixed-fee arrangement.  This means that the client and the attorney can agree on the front end (at least much of the time) how much the estate planning legal work will cost.  Price certainty is a wonderful thing for both the clients and the attorney.  The “catch” (for the attorney’s benefit) of a fixed fee arrangement is that the attorney gets part or full payment as an upfront retainer.  This gives the attorney assurance of getting paid for the legal services.

Some people work well together, and some don’t.  This is true when it comes to legal work generally, and estate planning in particular.  I am sarcastic and otherwise have a very dry sense of humor.  This is ok with many people, but some prospective clients do not understand or appreciate my attempted humor.  Or, perhaps there are other things about my approach and methods which are not conducive to how a client wants his or her attorney to operate.  Back to the fixed fee and prepayment of retainer point–that is how I normally operate when I do the estate planning legal work.  I have found that this makes things go much more smoothly for the clients and me.  Frankly, if an estate planning client is not willing to pay upfront, they are likely not committed to the process, to doing their “homework” and otherwise doing what they need to do in order to complete the estate planning work in a timely manner (the attorney and the client both have the stuff to do).  Not often, but sometimes I have prospective clients who are not interested in paying a fixed fee retainer.  To me, that is usually an indication that it is not a good fit and usually, the lack of fit is also evident in other areas.  Regardless, make sure that you have spent enough time talking to the attorney, asking questions and answering questions, so that you have enough of a feel for the personality, preferences, and methods of the estate planning attorney to feel comfortable.  Otherwise, it could be an unpleasant experience for you and the attorney.  Remember, the attorney/client relationship should be a good fit both ways.