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Dabble, Dabble, Toil and Trouble

By April King posted 09-27-2016 10:35 AM

  

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Is it me, or is estate planning the afterthought business area for many of us?  Are you one of those who wrap up your elevator speech with “and a Will here and there”?  For fun, sometimes I imagine what a fellow lawyer would think if I as an estate planner appended “and the occasional first degree murder appeal” or “about 5% of my practice is defense of drug patents” to the description of what I do. 

            I’ll never forget the gasp that went through the room at the 2015 SoloSmall gathering in Duluth when Eric Cooperstein described going through the LegalZoom will “making” process without being asked the nature or scope of his assets.  But let me probe a little here:  have you drafted a will without asking questions sure to help you win friends and gain influence like “have you made any loans your spouse doesn’t know about?”  “What is the reason you want to exclude your child Sally?” “How will it impact your brother’s substance abuse problem if he receives that IRA outright, rather than in trust?”  “How stable is your employment situation?”  “Do you want uncompensated care giving to impact distribution of your estate?”  “What’s your [expected] ‘burn rate’ on your retirement savings?”

                There are simple wills; there might even be simple trusts; but there are very few simple lives.  Planning should yield a distillation of “how to run and wrap up my life for me when I’m not (fully) here anymore to tell you what to do” and should smoothly flow into an administration process that fulfills the goals of the client.  Estate planning is not a good area—if there are any—to practice in a small way.  And document drafting, to the client, equals estate planning, because they don’t know otherwise. Estate planners who specialize gather extensive financial and family data, discuss family dynamics, and interact with the client sufficiently to read the client’s capacity, sophistication, and tolerance for complexity.  These processes plus background knowledge of tax, MA, probate, financial custodians and so on are all necessary to evaluate which tools are best suited to serve the client’s goals in a way the client can live with and draft them accordingly.  If you supply a client with a set of documents without all of that, should we call that malpractice by omission? 

            I’ve worked with folks revising their $3,000 set of documents because they didn’t understand them—so they couldn’t live with them.  We’ve all heard the horror stories of the Trust Written But Never Funded.  I’ve talked with the client whose parents left him co-owner with difficult brothers about the expense of a partition action and felt his frustration that Mom and Dad’s plan was not better considered.

            Most lawyers choose a couple of areas of focus and feel very aware what a mistake it would be for a person lacking their level of expertise in those areas to get mixed up in them.  Many of those same attorneys feel free to draft estate planning documents on an occasional basis.  This is probably a mistake.  Minnesota Lawyers’ Mutual’s 2014 overview of selected ethical issues in estate planning is only a beginning.  Beyond the special ethics issues in estate planning, there are areas of particular competence such as tax and medical assistance planning that can easily lead to claims of “you should have told me...” Finally, there is the growing pressure to recognize the claims of third parties, on various theories of liability, to the attorney-client relationship in estate planning.  As the American Academy of Estate Planners notes, “The ever-shrinking doctrine of privity is yet another reason that attorneys should not dabble in estate planning.”

            Even we lawyers need to be reminded, maybe, that documents do not a plan make. For the sake of the potential client: if you don’t make it the biggest part of your business to know the ins and outs of planning for retirement, aging, death and all the ways wealth transfers occur in connection with those phases, consider referring your callers or clients asking for “help with a will” or “advice about a power of attorney” to your favorite estate planner.

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11-20-2018 09:11 AM

Amen.