Hiring an estate planning attorney is often the first opportunity an individual has had to hire an attorney to assist them. The process can seem overwhelming if one does not know what questions to ask. Asking the right questions can help you determine if you are hiring the right estate planning attorney for you. Here are my top five suggestions for questions you should ask:
1. What proportion of your practice is related to estate planning and estate planning related services?
You may have heard the figure of speech “jack of all trades, master of none” to describe someone who knows a little bit about a lot of different things. In the estate planning context, hiring an experienced professional, rather than someone who does a little estate planning as part of their corporate (or personal injury or traffic or bankruptcy) practice will serve you well. While many estate planning situations may seem relatively simple at first glance, those situations often involve complexity beyond the skill set of someone not routinely engaged in estate planning.
As an example, blended families have challenges in dividing assets in a fair and equitable manner while still meeting the needs of and obligations to the surviving spouse. Elective share rules, pre-nuptial or post-nuptial agreements, exempt property, homestead and family allowances must be addressed and considered when creating an estate plan for a husband and wife in a blended family.
2. How long have you been in practice?
Many estate planners will tell you that the learning curve in estate planning is steep and takes several years to experience most of the “common” situations our clients may encounter. Hiring someone fresh out of law school may mean you are sacrificing the experiences that would allow him or her to address complex situations. On the other end of the spectrum, if your attorney has been in practice many years and may be close to retirement age himself, will he even be around when your estate plan is likely to be tested.
There’s no right answer about how long an estate planning attorney must be in practice before he or she will have the necessary skill set. You should, however, inquire about their practice and experience to make sure that you are getting the right professional for you.
3. Do you assist clients in probate and trust administration matters?
Even a well-drafted estate plan will be put to the test when a client dies. I believe that my experience in assisting clients through probate and trust administration matters has allowed me to anticipate issues before they arise. This means that estate plans can be crafted to avoid common pitfalls.
Similarly, does your attorney have probate and trust administration experience? Will he or she be the person your family turns to when you become incapacitated or die? If your estate planning attorney does not assist with estate administration matters, why not? What if there is an issue with the documents as drafted? Does your attorney stand behind his or her work?
4. Are you familiar with the estate, gift and generation-skipping transfer tax rules?
Even for modest wealth, certain transactions can have unintended income, estate, gift or generation-skipping transfer tax consequences. Does your attorney have the requisite knowledge to address these issues and advise you on proper structures to avoid unintended tax consequences? Does your attorney regularly participate in continuing legal education on topics involving these tax issues?
5. How do you handle asset transfers to fund the estate plans you create?
Once the ink is dry on your new estate planning documents, who handles transferring assets to your trust (if you have one)? If you are using “pay on death” or “transfer on death” designations, beneficiary designations, etc. in lieu of a trust, who assists in preparing the appropriate paperwork?
If you will be responsible for funding your own plan, then you should know that before you hire an attorney. If the attorney handles all funding, then you should know that (and know how you will be charged for those services. Again, there is no one size fits all solution for funding. Instead, you simply need to understand what you will be responsible to handle on your own.