You may have gone your entire life never needing to hire, much less, interact with a lawyer, so it it's no surprise that you might not know exactly what to expect. In this next series of blog posts, my goal is to layout the general process of working with an estate planning lawyer. Hopefully, by understanding the basics, you will feel more comfortable about starting the important process for yourself and your family.

First Contact

As with any professional engagement, you will be calling or e-mailing the estate planning lawyer to find out about how he or she can help you. You might find your attorney in any number of ways, for example, through a general Google search, via Yelp, or specialized lawyer websites such as avvo.com. Whatever the avenue may be, you will be the one reaching out to the estate planning lawyer initially (for a number of reasons, a lawyer is unlikely to be the one "cold-calling" you to sell you services).

Details to Discuss

During your first call, there are a few general objectives you and the lawyer will have. Here are some of them:

1. Find out whether you get good "vibes" from each other. Simply stated, do you feel confident that the lawyer knows what he or she is doing and vice versa; the lawyer will be assessing whether his or her skill set will be adequate to handle your situation.
2. Specifics of what working with this estate planning lawyer is like. This would include details such as: (1) whether e-mail, physical letters, or phone calls are the best form of contact [note: many older estate planning lawyers rely heavily on physical mail rather than e-mail]; (2) what the lawyer's fee arrangement is [for example, you may discuss the amount of the retainer required and whether the lawyer charges by the hour or charges a flat rate; you can even ask about what a cost estimate would be for your estate plan]; (3) the timeline for completion of the estate planning documents [to some degree, this will also depend on how quickly you will be able to make decisions regarding your plan, but outside of this, the lawyer should be able to give you a good estimate].
3. Information that will be helpful to the estate planning lawyer. To make your engagement go as smoothly as possible, it's a good idea to have the following information ready (preferably in a Word document or in an e-mail ready for whichever lawyer you ultimately decide to use): (1) personal information of you and your family, including name, address, phone number, e-mail address; (2) your family situation, for example, whether you have children from a prior marriage or your divorced, etc.; (3) copies of existing estate planning documents that you may have; (4) a list of your assets and the approximate value of each asset.

Setting a Meeting Date

After you've exchanged pleasantries and details about your estate planning situation, the lawyer or his or her assistant will often book a time to meet with you in person to go over the structuring of your estate plan. The estate planning lawyer may also send you a separate e-mail or questionnaire of additional questions to help the two of you have a productive meeting to discuss the finer details of your estate plan. (There is some homework for the lawyer to do, which I will discuss in the next blog post.)

So, there you have it, the first contact with your estate planning lawyer in a nutshell.

Many people get tripped up on the steps that need to be taken after an estate plan has been set up. For those with simple estates, there may not be much to do after meeting with the estate planning lawyer to sign the documents. For others, additional steps need to be taken to ensure that the estate plan will be fully functional once they become disabled or pass away.

Wills

If your estate plan utilizes a Will as the primary tool to transfer your assets, you're basically done after it's been signed and witnessed. You might have assets that are held as joint tenants that need to be updated or beneficiary designations on assets such as life insurance policies and/or retirement accounts that may need to be revised, but generally speaking there's not too much ongoing maintenance. (Although it is still good to periodically review your Will to make sure that you are distributing your assets to the appropriate people or organizations in your life.)

Revocable Living Trusts

Re-titling Assets

If your estate plan utilizes a Revocable Living Trust, then there are still additional steps that need to be taken to ensure that the trust is what governs the use and transfer of your assets. The primary focus here is on ensuring that assets (other than those that utilize beneficiary designations such as life insurance policies or retirement accounts) are re-titled in the name of the trust. Usually, this means that your property, which you might have previously owned as "John Doe, a single man" will now be owned as "John Doe, as Trustee of the John Doe Living Trust dated January 1, 2018". You will want to change the title to bank accounts, brokerage accounts, real estate, interests in any business entities (e.g., stock or membership interests in an LLC) accordingly. You will also want to revise the beneficiary designations on life insurance policies and/or retirement accounts. 

Beneficiary Designations

For life insurance policies, we generally recommend listing your trust as the primary beneficiary, the idea being that the proceeds from the policy should be distributed in accordance with the wishes stated in your trust. For retirement accounts, spouses will often name each other as the primary beneficiary, and then name their trust as the secondary beneficiary. The purpose for the different approach here is that the law allows for surviving spouses to convert retirement accounts for which they are beneficiaries into a "spousal rollover IRA", which then permits the spouse to continue tax-deferred growth of the retirement account. The trust is named as a secondary beneficiary so that the retirement account can escape probate after the surviving spouse passes away. Single individuals may name their trust directly as a primary beneficiary.

Business as Usual

Making sure that assets are re-titled in the name of the trust and that appropriate beneficiary designations are updated, can be the most time-consuming and frankly annoying part of the estate planning process. After it's done, there's generally no difference in how you live your day-to-day life, and things such as income tax returns and other obligations continue to be the same as they were before you created your estate planning documents.

Figuring out what to do with your assets after you pass away is a large component of estate planning, but generally, planning for the proper management of your financial and health care while you're alive is another major component. There are 3 broad avenues that may need to be used if you become incapacitated to the point where you are no longer able to express your wishes.

Medical Decisions

First, the Advance Health Care Directive may be needed to give proof to doctors or hospitals that the agent you've selected has the authority to make medical decisions for you. Without this, your family might run into conflicts about what you want regarding medical treatment.

Financial Decisions

Second, the Durable Power of Attorney may need to be recorded in the county where you own real estate or be provided to financial institutions where you have accounts so that your agent can transact on your behalf. This can be a huge benefit and help your family avoid the need to have a conservator appointed for you.

Successor Trustees

Third, if you've established a trust, the successor Trustee of your Trust may need to be called into action to take control of the trust assets so that they can continue to be used for your benefit. For those who have trusts, the assets held by that trust can only be utilized by those who have authority to do so, and the successor Trustee is the first in line. This also helps your family avoid the need for a conservatorship.

As such, the nature of an estate plan can be just as important while you're alive as it is after you pass away.

Estate planning is unique in the sense that it intersects with so many other areas of the law. It's not uncommon that a client's estate plan might raise issues related to real estate, business, employment, insurance, intellectual property, and taxes. On top of that, a skilled estate planning lawyer will generally have excellent interpersonal skills and navigate delicate family or other issues with common sense, objectivity, all while maintaining the highest levels of confidentiality and ethics.

One of the primary reasons that I recommend hiring a trained estate planning lawyer rather than taking a DIY approach is simply because of the experience the lawyer has. He or she has probably seen the situation you're facing hundreds, if not, thousands of times. The lawyer will usually have helpful suggestions on how you can transfer your assets in the most efficient manner (whether from a tax perspective or otherwise) and can often serve as the intermediary for bringing comfort to the family about a particular decision you've made (for example, the selection of one of your children as the manager of a business over the others after you've passed away).

Estate planning lawyers can also serve as a sounding board for potential business and personal situations that come up in your life. Lawyers are trained to view facts objectively, and can play "devil's advocate" to expose you to a different way of viewing your issue. In the backdrop, the estate planning lawyer will be assessing your situation in light of laws that may be implicated as a result of your decisions.

Certainly utilizing a document preparation service can save you a few dollars in the short run, but over the long term, hiring a competent estate planning lawyer could save you quite a bit more.