By Micah Miller, J.D., LL.M, Managing Director, Wealth Strategy
Choosing the right estate planning attorney is important because they will advise you on highly personal topics, like how to most efficiently and effectively secure your assets, support your loved ones, and protect your long-term goals and wishes. It is crucial to select a knowledgeable and experienced attorney with your best interest at heart and whom you have thoroughly vetted.
You should consider the needs, complexities, and dynamics within your family and determine whether your family will be best suited by a single estate planning attorney representing you and your spouse jointly, or if each spouse should be individually represented by their own estate planning attorney.
Joint Representation: An estate planning attorney who represents you and your spouse jointly is obligated to share all information with both spouses. Joint representations are very common for married clients but can present some uncomfortable situations. For example, if one spouse privately shares with the attorney that they have a child their spouse is not aware of, the attorney has a legal obligation to share that information with the other spouse in a joint representation. Or, if one spouse has significant separate property, the attorney may be obligated to advise that spouse on how to protect those assets in case they divorce their spouse who is sitting in the meeting. Clearly, joint representation may make many pieces of the planning process far smoother and more cost-efficient, but it can also complicate and create uncomfortable situations.
Individual Representation: Conversely, an attorney who solely represents one spouse in developing that spouse’s estate plan as a piece of the family’s broader plan is legally bound by a duty of confidentiality to that spouse. The attorney cannot share any details of the estate plan they develop or any subsequent amendments to the plan with the non-client spouse, children, heirs, or other beneficiaries without the express direction of the client spouse. One spouse could drastically alter the estate plan or even disinherit someone, including their spouse, without that spouse or their attorney ever informing the non-client spouse or affected parties. Obviously, this can create family strife and complicate relationships.
It is important to inform any attorney you interview up front which method of representation you and your spouse have selected and that you understand how this may affect clarity, ongoing communication, family conflict, and protect your goals and wishes. Then, make sure to read your attorney’s engagement letter thoroughly to ensure that it accurately reflects your decision for joint or individual representation.
Consider discussing the following nine questions when you interview, hire, and work with an estate planning attorney.
9 Questions to Discuss with an Estate Planning Attorney
- Who does the attorney represent?
a. Joint representation may ensure more transparency and information sharing because the attorney cannot alter the estate plan without notifying all of the parties the attorney represents.
b. Individual representation may ensure more privacy for each spouse and protection of individual interests.
- How is one spouse protected when the other spouse wishes to amend the estate plan?
a. Standard provisions in most joint trusts require both spouses to consent to any amendments to the estate plan that affect community property assets but allow a spouse with separate property to amend the estate plan as to that separate property without their spouse’s consent.
b. Separate trusts for each spouse generally allow each spouse to amend their trust without consent of, or notice to, the other spouse. Consider whether you and your spouse in this situation want to include a provision that requires each spouse to provide notice to the other spouse of any amendments to their estate plan, even if the law does not otherwise require this notice.
- What ability does a surviving spouse have to alter the estate plan after the first spouse’s death?
a. After one spouse dies, the trust instrument often calls for the creation of several sub-trusts, which may include a combination of a Survivor’s Trust, Marital Trust, and/or a Bypass Trust. The structure you chose can drastically affect the surviving spouse’s access to and use of assets, ability to alter the estate plan, and ultimate beneficiaries after the surviving spouse’s death. Ask your attorney questions about the implications of the various structures and the advantages and disadvantages of each.
b. Provisions that provide for or restrict a surviving spouse’s “power of appointment” can provide flexibility in the estate plan but may also allow the surviving spouse to make drastic changes to the estate plan after the first spouse’s death. Understand the pros and cons of these provisions and have your attorney tailor them to fit your goals.
- Is the attorney an estate planning specialist, have relevant advanced degrees, and/or part of highly regarded estate planning societies?
a. Some states have specific designations to indicate an attorney has undergone additional training and has demonstrated proficiency in estate planning.
b. Advanced degrees like a Master of Laws degree in Tax (LL.M) or accreditations like an Accredited Estate Planner (AEP) or Tax and Estate Practitioner (TEP) demonstrate a certain level of competence in topics relevant to estate planning.
c. One of the most prestigious recognitions an estate planning attorney can obtain is fellowship in the American College of Trust and Estate Counsel (ACTEC). Membership in the Society of Trust and Estate Practitioners (STEP), or the local Estate Planning Council, also demonstrates an attorney is staying educated and updated on the latest tax changes and estate planning techniques.
- Does the attorney work with clients who have a balance sheet like yours?
a. If you are subject to the estate and generation skipping transfer taxes that affect a very small portion of the population, ensure your attorney regularly works with other clients affected by these taxes and is a specialist at planning for and around them.
b. Make sure the attorney regularly deals with any type of special assets you may have, like leveraged real estate, agricultural land, or carried interest for example that may have special taxes, exemptions, filing requirements, or planning considerations.
- Does the attorney have partners with complimentary specializations that may be useful for your situation (e.g., real estate, private equity/venture capital, executive compensation, cross-border, etc.)?
a. You may be able to access a wider range of resources and specializations through a larger, more prominent law firm.
b. However, solo practitioners and smaller boutique law firms are common (especially for estate planning), are less expensive, and in many instances still provide quality estate planning.
c. The complexity of your estate plan should determine which professional resources you require.
- How quickly can the attorney and their team complete your project?
a. A projected timeline at the start of your relationship can help manage expectations.
b. Estate planning attorneys tend to be busiest at the end of the year and when there are proposed changes to the tax laws. Also, certain planning structures need to be timed properly in relation to the effective date of new laws, the beginning and end of tax years, or pre-IPO or sale of a business. Start your planning process early – do not wait until the last minute.
- Does the attorney have a team of paralegals, associates, and partners that can step in if the attorney is unavailable?
a. Understand the scope of attorney’s team that are available for anything from sending a copy of a document to you, to undertaking drafting new documents.
b. Understand the attorney’s succession plan and who will take over your file if you are likely to outlive the remainder of the attorney’s career.
- Who is responsible for upkeep of the estate plan?
a. Schedule regular reviews and updates to your estate plan, if necessary. At a minimum, you should review your estate plan after major life events, such as a marriage, divorce, birth, or death in the family. This is essential to ensure that your plan continues to reflect your wishes and serves its intended purpose. You should discuss with your attorney how proposed or enacted changes in the tax laws may create new opportunities or challenges with your planning.
b. Ensure that there are clear lines of communication between your attorney, accountant, and financial advisor so that any actions you take are coordinated.
Perhaps the most important step in selecting an estate planning attorney is to interview multiple candidates to ensure you find the best match for you and your family. In navigating the complexities of wealth, continuity in your estate planning team can help protect your family and assets for generations.
Contact us to explore how we can help your family navigate the complexities of wealth transfer.