An estate is the real and/or personal property a person possesses at death. The practice area of estate planning law involves the drafting of living wills, trusts, powers of attorney, and other documents to facilitate the transfer and management of property after death. When estates aren’t managed and someone dies without a will, their possessions will distributed to their next of kin. By not making a will or otherwise making estate plans, the individual gives up control of their estate and has no say in how the property is divided.
Estate Planning Law: Terms to Know
There are key terms to know that help to understand estate planning law, including the following:
• Intestate: Having not made a valid will before death; not disposing of property of by a valid will.
• Advance Directive: A document (as a living will or durable power of attorney) in which a person expresses his or her wishes regarding medical treatment in the event of incapacitation.
• Probate: The legal process of transferring of property upon a person’s death, particularly in the absence of a will.
• Real Property: Property consisting of land, buildings, crops, or other resources still attached to or within the land or improvements; or fixtures permanently attached to the land or a structure on it.
• Inheritance: The act of inheriting, as the acquisition of real or personal property under the laws of intestacy or sometimes by a will. Depending on the complexity of the estate, the health of the individual, and other factors, practically everyone may need the services of an estate planning lawyer at some point. Sometimes individuals will work with a lawyer on behalf of a relative or loved one who is no longer able to manage their own affairs. After having children, some families decide to create a trust, which is a document similar to a will, but also helps manage property before death. Some common reasons for hiring an estate planning lawyer include the need to create:
• Trusts: Legal/fiduciary arrangement in which one party holds legal title to another’s property, as a trustee, and manages the property for them on their behalf; similar to a will, but dictates how assets are to be transferred or used during life (for instance, children may obtain certain assets prior to their parents’ death).
• Wills: Legal document specifying how an individual’s property and affairs are to be transferred and managed after death.
• Living Wills: Legal document outlining medical and end-of-life preferences in the event that you are unable to communicate these wishes.
• An Overall Estate Plan: Estate planning attorneys often work with clients in a more comprehensive way, by assessing an individual’s estate, asking about preferences and life goals, and advising on the client’s options.
Estate planning is a specialization in the legal profession. The job of an estate planning attorney is to work with clients on planning and preparing their legal paperwork and estate for the eventuality of their death or incapacitation due to injury or illness. Duties and responsibilities of an estate planning attorney include counseling clients and drafting legal documents for living wills, estate taxes, living trusts and estate plans. These attorneys must have a particular understanding of areas of the law related to wills and trusts, such as the probate process. Jobs as estate planning attorneys are expected to rise as the population ages. The Bureau of Labor Statistics projects that the employment of lawyers is projected to grow 8 percent between 2016 and 2026. The qualifications you need to become an estate planning attorney start with a Juris Doctor degree from an accredited law school. You must also take and pass the state bar exam where you practice, and you should take classes that help you specialize in estate planning responsibilities. Family law, real estate law, asset management, drafting a living trust, taxes, and estate planning are all beneficial areas of study. You can pursue further specialized schooling in taxation or estate planning or receive hands-on experience in your duties through a mentorship. Financial knowledge, the ability to draft a will, and strong communication skills are essential to your success as an estate planning attorney.
Estate planning doesn’t begin and end with a last will and testament. An attorney practicing in this field drafts living trusts and develops plans to mitigate or avoid estate taxes. They work to ensure that your life’s savings and assets are safe from beneficiaries’ creditors when you pass on. Estate planning lawyers can prepare powers of attorney and health care directives that arrange for someone to take care of your affairs if you should ever become mentally incapacitated. Powers of attorney give someone you trust the ability to sign in your name if you become unable to. You can make a health care directive to assign an agent to conduct your health care wishes if you’re incapacitated. They can help you avoid guardianship or conservatorship issues if you need someone else to look after your affairs. You can appoint guardians (to handle personal issues for your kids) or conservators (to handle your kids’ finances) to look after your children and finances if you pass away before they reach an appropriate age be on their own and handle their inheritance.
Estate Planning Lawyer Qualities
A general law practitioner may not have the experience and specialized knowledge to assist you with your unique family and financial situations. Look for an estate planning attorney who:
• Devotes their practice to estate planning
• Makes you feel comfortable sharing intimate details of your life and concerns, so your estate plan doesn’t fall short of your expectations and needs.
• Is well-versed in and up-to-date with the laws of your state. Otherwise, your estate plan could be deemed invalid by the court.
There are multiple ways to find an estate planning attorney you can comfortably work with and trust. Start by asking someone who already knows you, such as your financial adviser or accountant. Your local or state bar association is another source of reputable referrals. You can ask the local probate court and consult other attorneys as well. Before committing, it may be possible to interview a few briefly by phone to help determine your ability to communicate effectively with them. Be prepared to pay to have your estate plan created, maintained, and updated by someone specializing in this area of practice. You’re paying for the attorney’s expertise and knowledge of estate laws, and to have a plan that will hold up in court. Your estate might stand to lose far more money in the long run than it costs to pay a qualified attorney.
A flat fee may cover the preparation of essential documents and initial consultation. If an attorney wants to charge you by the hour, try to negotiate a flat price for all the work you expect is needed. Some experienced attorneys will agree because they have a good sense of how much time goes into a specific task. If your estate incurs taxes that could have been avoided, or if a contentious probate process drags out after you pass on, your loved ones may wish that you had spent the money to plan instead. It is worth paying for the planning, so that you know things will go exactly as you intended because you had the help of an experienced estate planning attorney. Take the time to find and hire a professional and respected attorney in your area. In the long run, you and your family will be glad you did.
These steps can help you streamline the process of finding an attorney who is right for you.
Search for candidates
Start by identifying what you need to accomplish with your estate plan. That information will help you determine the type of attorney you’ll need. Most people need a generalist who can help draft a will, powers of attorney, and basic trusts. But some situations call for attorneys with certain specializations. For example, you may have reason to be especially concerned about maximizing benefits programs such as Medicaid, or addressing long-term care, in which case you may need a specialist in elder law. If you have financial interests overseas, you may require the skills of an attorney who specializes in international estate planning. Likewise, if your case requires legal work in more than one jurisdiction or state, be sure to consider attorneys who are licensed to practice in all those places. Once you know the kind of attorney you need, you can begin to build a list of potential candidates. Start by asking trusted friends and family members for referrals. “Word of mouth is always one of the best approaches.”If people have had a bad experience, they’re sure to tell you.” Also consult with financial professionals with whom you work, such as financial advisors, accountants, insurance agents, and bankers. They may be able to refer you to attorneys they know and trust. When you have a working list of candidates and referrals, look into each attorney’s background. Check their websites for information about firm size, experience, and specializations. Take a look at the social media sites that each attorney uses. The way an attorney is represented on social media sites may give you a sense of what it will be like to work with them.
Interview your prospects
After you’ve narrowed your list to your top few candidates, confirm their state bar registration status, and then talk to them about an interview. An attorney may or may not charge you for an interview. Come prepared for your first meeting (in person, or by video conference) with all the information that you will need, including your estate planning summary and any supporting documents. Also prepare a list of questions you would like to ask prospective attorneys, including the following:
• How long have you been practicing?
• Where were you educated?
• How will you communicate with me?
• What are the best ways to contact you?
• Will you be my point of contact, or will it be someone else, such as a paralegal?
• Will you send me updates about the status of my plan, or should I expect to take the initiative?
• How will you charge, and what is your rate (hourly vs. fixed rate)?
• Are any charges not included in that rate?
Understand each attorney’s fees
Price is a key consideration in choosing an attorney. Keep in mind how much you can pay and find a lawyer whose fees you can afford. Some attorneys offer a free consultation; others don’t. Some offer a free consultation for a set amount of time, such as the first hour, and begin charging after that. Find out what each attorney’s policy is before the first meeting. Fee structures for drafting an estate plan can vary as well. Some attorneys charge a flat fee, while others bill by the hour. Flat fees typically include everything required to prepare the estate planning documents. In general, simple estate plans, including a will, power of attorney, and medical directives, can cost between $1,000 to $2,500. More complex plans—for example, those that include trust documents could cost up to $5,000 or more. Individual rates may vary by jurisdictions and states, as well as other factors. Hourly rates commonly run between $200 and $300 an hour; again, individual rates may vary by jurisdictions and states, as well as other factors, such as the size of the firm. Note that it’s normal for attorneys who bill hourly to bill in increments of no fewer than 6 minutes, or a tenth of an hour. An attorney also may pass along other fees for specific tasks, such as online research, court filings, copying documents, or courier fees. Ask about these potential charges up front before making a selection.
After you’ve interviewed your prospects, choose the one who fits best with your needs, personality, and budget. At this point, the attorney may provide you with an engagement or retainer letter, a contract that defines the nature of your legal engagement with them and the terms of the agreement you have reached. These terms include the expenses you will be responsible for and how your attorney will charge for their time. From there, your attorney will help you craft an estate plan, and you can work together to make sure that it covers all of your needs.
Reasons You Need A Lawyer To Write Your Estate Plan
• You Need More Than Just A Will: Always remember, and never forget, you don’t just need a will, you need an estate plan. While the two terms “will” and “estate plan” are often used interchangeably, this is wrong, as they are two different things. An estate plan is a set of legal documents to prepare for your death or disability. A will is just one of those legal documents, albeit an important one. In fact, there are at least six “must have” estate planning documents you need. So, you don’t need to draft just one legal document and get it right, but several.
• Save Time And Energy: Handing off the complex task of drafting a thorough estate plan to a responsible professional will alleviate an immense burden on you. It’s simply a lot of work to write an estate plan.
• Save Money: Without an estate plan, you and your estate may end up paying more in the long run in professional fees, court costs, and taxes. Using a flat rate with an attorney will be much more straightforward and to your long-term economic advantage.
• Save More Money: An experienced attorney knows where to look and what questions to ask to help you secure additional tax and financial benefits.
• It’s Complicated: I’ve mentioned this before, but this stuff is hard. It’s part art and part science. Every phrase, every word, can undo an estate plan. Plus, the law is dynamically changing all the time. The federal government, Iowa government, agencies like the IRS, and courts at every level are changing the rules of the game constantly. It’s almost a full-time job keeping track of the current play of the rules, let alone learning the rules to begin.
• One Shot: After you shuffle off this mortal coil, how many chances do you get to get your estate plan right? One! There is no second chance. Don’t get me wrong, you can always invest in a new estate plan if you realize your DIY attempt at an estate plan stinks. But, you shouldn’t have to if you get it right the first time! And, if something happens to you before you have the chance to make said second estate plan you’re out of luck. It’s done.
• Objectivity: Along with expertise, lawyers offer objectivity. By working with a lawyer, you’re going to bring that extra voice of reason to bear on current and future estate planning needs. Is it a good idea to leave your entire estate to your dog Buster? Is your 18-year-old kid truly mature enough to handle your IRA worth a million dollars? A lawyer can give you direct, unvarnished, and unbiased advice.
• The Only Constant In Your Life Is Change: As your life changes, your estate plan must adapt. Perhaps you move to a new state. Maybe you have a kid and then some more kids. The kids grow up and have kids of their own. Throughout, perhaps you marry or divorce. Your financial situation significantly changes. All these life events and many more, necessitate changes to your estate plan. You need a lawyer to tell you when your estate plan needs a tune-up and to perform the tune-up.
• Lawyers Themselves!: It’s funny to think about, but nonetheless true. After you die, who will determine if your estate planning documents are valid? Lawyers! State judges (who will, of course, be attorneys) are going to review your estate plan documents. These judges will determine whether your documents meet the necessary requirements. You don’t want to leave it up to a judge, trained as a lawyer, to try to figure out if your DIY documents are valid under Utah Probate Code.
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.