Why Use a Lawyer for Estate Planning When You Can Do It Yourself?
July 29, 2010
(Photo Courtesy of HalfDark, www.gettyimages.com)
Do you think you can create your own estate plan? In the right circumstances, the answer may be yes… But how do you determine what are the right circumstances? A recent US News and World Report article on do-it-yourself planning gives both sides of the argument.
There is a growing recognition that not enough people have estate planning documents and many wills, trusts, and powers of attorney are sold through the internet and by non-attorneys. These DIY plans have the benefit of being inexpensive, but often fail to provide for your loved ones in the manner you intended.
I am frequently contacted after a death by a family member whose loved one paid for the least expensive plan only to discover that the plan didn’t work for any number of different reasons. When contemplating an estate plan, lawyers owe a specific duty of competence to their clients (as well as other duties arising from the special attorney client relationship)—a DIY program or “fill in the blanks” document feels no such duty, and often neither do the people or companies who sell them.
When hiring an attorney, the documents themselves are the least expensive part of the relationship. The client is purchasing the lawyer’s knowledge and experience applied to the client’s unique circumstances. And although many clients believe they have a simple plan, in truth everybody has unique issues that require examination, and every client benefits from the personal relationship and the lawyer’s attention to detail.
I recently probated an estate wherein the family believed all the assets were titled either in joint tenancy with rights of survivorship or with POD designations that would avoid probate, but one single substantial bank account was improperly titled. As a result an expensive and time consuming probate procedure frustrated the family’s intentions of a quick and inexpensive administration procedure.
In two other recent cases I was able to avoid a probate despite the family having been advised that a probate was necessary to sell real property inherited from an ancestor. In one case a less expensive Affidavit for the Collection or Transfer of Real Property was appropriate despite the title company demands. In the other I was able to use a filing and recording proceeding so a foreign personal representative could act, even though the family had been told an Arizona probate proceeding was necessary.
Another increasingly common and painful occurrence that DIY plans aren’t likely to point out is family disputes over life insurance that occur because the decedent’s beneficiary designation is out of date due to (re)marriage, divorce, or birth or additional beneficiaries. Poorly thought out beneficiary designations for retirement accounts, or property left to minors or disabled descendants without adequate consideration for how the property is to be administered are altogether too common. Making the assumption that everything is in order and cutting corners on the review process is what dooms many estate plans.
Unfortunately, there is no bright line test for when a DIY plan can succeed. There is just no substitute for good legal advice. So please, be careful out there! I concentrate on creating estate plans that work using the least expensive alternatives, but without cutting corners. If you think I can help your family, or that you would benefit from a consultation, call me.
Taking Time to Stop and Smell the Roses
July 22, 2010
(You may have noticed that our site was recently attacked by malware. My team has diligently worked to remove the offending virus and added new software to protect against a recurrence of such attacks. I hope you will enjoy our once again virus free website.)
Sandy and I recently took a rare weekend off and spent a couple of days in Del Mar where we spent some time attending an estate planning conference, but mostly we enjoyed the sunsets and the good food at Jake’s on the beach (probably our favorite place to have good food and people-watch) near downtown Del Mar. A wonderful eclectic mix of old and young California families were picnicking and surfing. There truly was something for everyone—as typified by Sandy wearing both a jacket and a sweater as protection against the cool ocean breezes while I reveled in my shorts, tee, and sandals thinking of the 115 degrees back in the Valley.
Watching families in Del Mar—an old established community that remains vibrant with people of every age—playing, shopping, eating, and just enjoying themselves, always reminds me of the importance of the generations and the estate planning that I do. Although adherence to technical standards may be the sine qua non of my practice, it is the assurance of family legacies and their accumulated wealth that is the reason for what I do.
On the return trip Sunday, we took a scenic inland route up to Indio through horse and farm country far different than the opulence of the coastal communities. The sense of hard work emanating from the scenery, the small businesses, the communities dedicated to ranching and farming reinforced my own dedication to making sure that I remember why I do what I do. It was every bit as intoxicating as the cool ocean breezes. Two lane country roads running through a different California than viewed from the freeway, yet co-existing with the bustle just a few miles away, is a metaphor for life and the differences each of us bring to our relationships.
I returned to work refreshed and ready to tackle the problems of the day with a renewed vigor and a fresh perspective. Our trip was a much needed holiday for which I am truly grateful.
Who Do You Trust?
July 8, 2010
My inspiration for today’s post comes from this recent article in the New York Times about debt relief firms, and a few questions I was asked by a prospective client.
As a former consumer debtor lawyer who represented many good families through bankruptcy proceedings in the 1980s and 1990s, I have an intense dislike for the predators preying on the most vulnerable members of our economy – those who have lost their jobs and their hope for the future, and who will try anything to avoid further soiling their already shattered self image. The article describes the feeding frenzy of entrepreneurs taking advantage of this class of consumers desperate for a solution out of their current travails. It brings to mind the late night television infomercials promising get rich quick schemes where the only ones getting rich are the ones selling the schemes.
What does all this have to do with estate planning?
A competent estate planner likes inquisitive clients, and especially likes clients who question credentials, experience, and pricing. It helps the lawyer “sharpen the saw,” identify what is important to the client, and to remain relevant in an ever changing world.
Your estate planner should have good answers to all your questions including how much will it cost, how long will it take, why he or she should hire you, and what the client should do if you are not around when they need you. If you are going to share personal and financial details with your lawyer you need to have confidence and trust in that person, and a good estate planner knows this.
A skeptical client should want to know about the lawyer sitting across the table from him or her before divulging personal information. In today’s electronic age, a prospective client can a have a wealth of information before the meeting even begins: the lawyer’s web site and other public information such as Martindale Hubbell listing and rating, State Bar information, reported cases, and other commercial listings. All of these let the prospective client garner a lot of information, but there is no substitute for asking questions and observing the lawyer’s verbal and non-verbal communication skills. You must like and trust the lawyer in whom you will repose trust – trust in the lawyer’s skill, knowledge, experience, talent, honesty, and demeanor. Hiring an estate planner is an important personal decision.
I recently had a conversation with a financial advisor. The purpose of the meeting in her words was for her to find out about my practice. Near the end of the conversation I asked her to tell me some of her most common frustrations with the lawyers she worked with and how I could improve on their performance if we were to work together. She was taken aback by my candor and thought talking about her relationships with other lawyers was improper, but I think bluntness is essential for good communication. Unless I found out why she was looking for more lawyers to work with, I might repeat the same mistakes. I ask all my clients who come to me with documents drawn by other local lawyers the same question – I want to find out up front if I can do better or if the best advice is to go back or keep looking.
A good estate plan is a living plan. It is not documents. A good estate plan is one that sparks a thoughtful discussion of ideas centered on the client’s values, assets, family, desires, and intentions. An estate plan is a priceless investment and you deserve an estate planner that has spent the time to understand the importance of that process and can communicate ideas that address your innermost concerns in a manner that comforts you.
What does all this have to do with the debt relief firms that cost a lot of money but end up leaving their customers worse off than before they started? Simply that it brought home to me that estate planners don’t have customers, they have clients, and an attorney-client relationship must be built on trust.
If you want an estate planner who welcomes your questions and takes into consideration your family and your values as well as your assets, call our firm. As an additional incentive—mention this post to Lisa, my experienced client coordinator, and I will waive the customary $500.00 initial meeting fee.