When retaining an attorney to assist with their estate planning or elder law matters, people often expect that the attorney, who has the “expertise” in the subject matter at hand – and is the person being paid for the work – is solely responsibility for a successful outcome. Without meaningful and active client participation in the process, however, an estate plan that “works” is unlikely. We have a saying in our office: your estate planning won’t work if we care more about it than you do!
So, how can you best work with an estate planning attorney to achieve the desired results? Here are a few recommendations:
• Be prepared to fully disclose to your attorney all of your assets and liabilities, and who holds title to the assets (e.g., whether they’re individually owed, jointly owned, held in a business entity, an “in trust for” account, etc.). When planning for the protection and distribution of your financial assets, it is critical that the attorney have a clear picture of what the client’s financial picture looks like. Many attorneys will provide an intake form for the client to list of this information. You do neither yourself nor your attorney any favors by coming to an initial meeting and saying, “I didn’t have time to complete the form.” You would be better off rescheduling the meeting until after you have completed the paperwork.
• Expect to have an open and honest conversation with the attorney regarding the family dynamic. Keep in mind that while the attorney has the legal expertise, the client is the “expert” about family matters. Remember that the conversations with your attorney are confidential; while no one likes to discuss potentially embarrassing information about themselves or their children, it is critical that the attorney knows about all the “skeletons in the closet.” Many parents, for example, are reluctant to inform the attorney that a child has a drug or alcohol problem, that a child has financial problems, or that a child’s marriage is shaky. But it is critical that the attorney be made aware of this information so that he or she can work with the client to design an estate plan that provides the appropriate planning to protect that child’s inheritance.
• In advance of the initial attorney meeting, give careful thought about what you are hoping to accomplish. Is estate tax planning a major concern? How concerned are you about protecting assets if you someday require assistance with long-term care? Do you want to provide different amounts to different children, or even disinherit a child completely? Are you interested in making charitable gifts as part of your estate plan? Do you have pets that you want to be assured will be taken care of? Your attorney should thoroughly discuss your planning objectives, and the different ways to achieve those goals. When we schedule an initial meeting with our clients, we provide them with a “Goals” form” that serves as a starting point for that important conversation.
• Think carefully about who would be the appropriate “helpers” in the event of your disability or death. These would include executors under your will, trustees for any trusts, guardians for minor children, agents under your power of attorney, and health care agents for your health care proxy. If no suitable family members exist, you are often better off choosing a professional fiduciary, such as a bank trust department, rather than a child or other family member who is ill-suited to the task.
“Successful” estate planning depends upon complete trust and interaction between the client and the attorney – it really is a “two way street.” Unless the client is fully engaged in, and committed to, the process, the client’s planning will likely fail to meet the client’s needs, regardless how knowledgeable or skilled is the attorney