Many people find it morbid to think about estate planning—understandably so: After all, the topic involves confronting one's own death. Nevertheless, it’s extremely vital to think of your survivors and the next generation, to make sure they seamlessly inherit your estate, without incident or pushback.
Just about any lawyer can draw up a will, which should suffice if your affairs are simple and straightforward and your assets few. But if you have considerable wealth (especially if it's above the current—as of 2019—estate tax exemption of $11.18 million per person, set by the 2017 tax reforms), numerous heirs, or complicated bequests, you probably should seek out a legal specialist in these matters: an estate-planning attorney, also known as an estate lawyer or a trust-and-estates lawyer.
Hiring the right professional can help ease and expedite the process, and ultimately bring you peace of mind. Asking the following 10 questions can help you find the ideal counselor.
- It's important to have a solid estate plan in place, to make sure your loved ones receive your assets without a hassle or undue delay after your death.
- There are many questions you should ask prospective estate-planning attorneys, before hiring one to craft your estate plan.
- Above all, make sure you hire an attorney who demonstrates a high-touch level of service, and with whom you feel comfortable discussing highly personal matters.
Ten Questions for an Estate-Planning Lawyer
Start with general questions, then get more specific.
1. Is your primary focus on estate planning?
Look for a hard “yes” on this one. You're here because you want a specialist in estates, who stays current with all the changes in legal statutes and strategies (see question 4 below), and who knows all the nuances. Many of the tools of the estate-planning trade, like trusts or powers of attorney, need to be established very carefully and worded very precisely to be valid.
2. What's the nature of your trusts-and-estates experience?
Obviously, the more years of experience an attorney has, the better. Has he had to execute or see his prepared documents go into effect after a client's death? Has she ever faced any challenges, from courts or the IRS, regarding the vehicles she's established? Has he handled many estates like yours, with most of your money, say, tied up in your own business or with property in other states?
3. Do you actually execute the plan?
"There are some lawyers who only do estate planning and no estate administration work," notes James Worthington, a trusts-and-estates attorney based in Louisville, Ky. It might be more efficient to retain a lawyer who does both.
A trust isn't much good if it isn't funded—that is, actually has assets transferred into it, which basically means having the trust titled as their owner. It's not that onerous a job, but if the lawyer isn't going to do it, who will? Will he or she recommend someone to help you?
4. Do you do periodic reviews?
For a small fee, some estate-planning attorneys will conduct a semi-annual or annual review of your affairs. This is important, because adjustments to your estate plan may be necessary if you experience a life change, an alteration in your finances, or if any tax law changes come about that may potentially impact your estate plan. Case in point: the tax reform act of 2017, which raised the estate tax and generation-skipping tax exemptions—but only until 2025.
5. How do you charge?
In contrast to other lawyers, many estate-planning attorneys charge flat fees for services, as opposed to charging by the hour. Or they might do a combination: a fixed rate for certain standard services (like establishing a trust), then an hourly rate for additional tasks or projects require special research or an indeterminate amount of time. Whichever, it's good to have the charges clear and explained ahead of time, to avoid unhappy surprises.
6. How do you feel about a revocable living trust?
Putting assets into one of these trusts avoids the often-onerous and expensive process of probate (filing a will with the court). Even so, they may not be the best move for everyone—they don't avoid inheritance, estate, or income taxes, for example—yet some lawyers oversell them so they can charge more than for just drawing up a will, Worthington cautions. If the attorney does think one might benefit you, then we're back to our third question—will you set up the trust, and if not you, who? It has to be funded while you're still alive.
7. Which other issues do you address?
As life expectancies increase, so does the probability for long-term health issues, both physical and mental, and the resultant expenses. Estate attorneys should help clients plan and prepare not just for death, but for disability or dementia, drawing up powers of attorney, healthcare directives, and living wills.
8. How long will it take you to complete my estate-planning project?
In most cases, there is no extreme rush. Bear in mind that you might want to discuss aspects of the estate plan with other professionals, such as your accountant, retirement planner, or money manager. Estate attorneys' expertise overlaps with these fields, obviously, but they are not general tax experts or investment advisors. Other members of your financial team could provide a good perspective on the estate plan and the practicalities of implementing it.
9. Will you send estate-planning documentation for me to review?
Even if you’re working with an experienced estate-planning attorney, it's essential to review all documents and forms because there's always the distinct possibility of miscommunication. Be clear on what can be changed later and what is irrevocable.
10. Will anyone else in your office be familiar enough with my estate to help if I have a question?
While most estate-planning attorneys will make themselves available to their clients at any time, it's still important to know: Has the attorney an associate or paralegal to act as a back-up?
And a Question for Yourself
Look into the mirror and ponder:
Can I work closely with, and confide in, this person?
All money matters get personal to a degree, but estate planning, in particular, is an intimate—even emotional—process. As we noted in the beginning, you're confronting your own mortality, and the legacy you want to leave. It's crucial that you feel comfortable with the attorney, and able to open up to them, discussing fears and hopes, being honest about your heirs, etc.
After all, the plan you two make together is going to live on, long after you're gone.