How Much Do You Really Want to Know About Your Estate Plan?

May 13, 2011
316669375 0089978531 m14 How Much Do You Really Want to Know About Your Estate Plan?

I received some interesting comments on my last post from Jennifer Deland, a Massachusetts estate planning attorney.  To paraphrase, she expressed that the typical estate planning client is really not interested in the technical language stated in the law.  Instead, it is of utmost importance to determine what the client thinks the documents say and do, to correct them if necessary, and finally draft the documents to make sure that what the client expects will actually happen.

This is a point well taken.  Not only is it an attorney’s job to keep up with the law and its consequences, but it is also to openly communicate with the client in understandable language.  An estate plan belongs to the client and not the attorney, so it should fully reflect what the client wants.

However, the attorney must also guide the client through the process.  The attorney adds little to no value if he or she merely fills out some form or provides no insight.  Rule 1.4 of the Model Rules of Professional Conduct requires attorneys to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” (emphasis added — you’ll soon see why).

Reasonableness:  Too Much Information or Not Enough?

But how much attorney guidance is reasonable, necessary and appropriate?

In estate planning, a well-drafted will or trust is the result of literally dozens and dozens of decisions – some of essential importance, but also some pretty mundane ones as well.  So at some level, an attorney must decide how much or how little he or she will explain details of the plan to the client while still working in the client’s best interest.

So can there a point where the attorney’s efforts to educate and help the client’s understanding become unreasonable?  Wise minds disagree on this point.

Example

Since we just covered “per stirpes” and “per capita” in our previous post, let’s utilize these concepts in an example while they are still fresh.

Say that a couple wants to leave their entire estate to their three children.  At this point, the attorney must ask the uncomfortable question of what the couple would want if one, two or all three of their children do not survive them both.

After the initial shock from visualizing this concept, the couple quickly answers that any grandchildren should inherit their children’s shares, as opposed to any siblings, parents, etc.

Great!  But now, the attorney must ask what kind of distribution they would want for the grandchildren.  At this point, there is little doubt that the attorney should take a couple of minutes to describe the differences between “per stirpes” and “per capita” distributions and then listen closely to the client’s answer.  But is there any duty beyond this?

  • Should the attorney present more options through a discussion of “modified per stirpes” and the differences between “per capita by representation” and “per capita at each generation”, thereby increasing the couples’ choice to one of four options instead of two?
  • Should the attorney discuss the development of the Uniform Probate Code through the years on this issue, and the differences of opinions between practitioners, the states, and the Uniform Law Commission (formerly the “National Conference of Commissioners on Uniform State Laws”)?
  • Can the attorney bill the client for the time he or she takes to explain the options?
  • Does the attorney act ethically if he or she doesn’t present all the options?
  • Can the attorney take into account that the clients’ eyes may glaze over with a thorough explanation?  Will this effort result in fatigue and rushed decisions later in the meeting?
  • Could this lead the clients to indecisiveness, and thereby cause sometimes great delay until the next meeting?
  • What if through the years, just about every one of the attorney’s clients have picked “per stirpes”.  Can the attorney make the decision solely based on his or her own experience and not even present the issue to the client?

Remember that this choice between a “per stirpes” or a “per capita” distribution is just one of dozens of decisions that need to be made for your estate plan.

The Proper Balance?

There are no clearly right answers to these questions.  Too little guidance from the attorney is not helpful to the client and quite possibly violates the Rules of Professional Conduct.  Too much guidance can take “ownership” of the plan away from the client, and can also be too expensive and time consuming for both the attorney and the client.

But as Ms. Deland says, it is obvious that the client’s level of understanding is clearly of primary importance.  Maybe you are interested in the technicalities in the law, and maybe you aren’t.  Whichever describes you, make sure that you choose an attorney who feels similarly to you regarding reasonable levels of communication, education and understanding.

 How Much Do You Really Want to Know About Your Estate Plan?
 How Much Do You Really Want to Know About Your Estate Plan?

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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6 Responses to How Much Do You Really Want to Know About Your Estate Plan?

  1. May 14, 2011 at 5:17 pm

    Scott, I am loving your blog. You clearly share my understanding about what this practice is about. “An estate plan belongs to the client and not the attorney, so it should fully reflect what the client wants.” You understand the importance of communicating with the client and you clearly love the technical practice of law, as well. Great stuff. Keep up the good work.
    Jennifer Deland recently posted..Case of the lost policy

    • Scott
      May 16, 2011 at 11:14 am

      Thank you so much Jennifer! One of the goals of this blog is to make people aware that, when it all boils down, the modern breed of estate planning attorneys are really trying to do the very best for their clients. I look forward to further posts from your blog as well, as you obviously implement this belief as well!

      Take care,
      Scott

  2. May 15, 2011 at 6:08 pm

    Scott great post. I agree with Jennifer’s comment. The estate plan should reflect the wishes of the clients, with the expertise of the estate planning attorney to guide them. Scott, you are correct in that there is no right answer as to how much detail the attorney should discuss with a client. As you say this is a client by client issue.
    Roger Wohlner recently posted..Are Target Date Funds On Target for You

    • Scott
      May 16, 2011 at 11:20 am

      Roger–

      I also know that you experience similar balancing acts in financial planning as well. I have also always appreciated the fee-only model of financial planning (that you and NAPFA follow) because of how people understand right from the start that you are looking out for their best interests without any conflict of interest. With this kind of relationship established, it becomes much easier to gain the trust necessary to help recommend and implement the appropriate strategies.

      Thanks for comments!

      Scott

  3. May 17, 2011 at 1:37 pm

    Scott- Found your blog through technorati today and I am enjoying your posts. I think that this post and the comments are right on and really get at the “value” of a quality attorney which to me is the ability to help our clients understand that their estate plan will be meeting their expectations and goals. For some clients, detailed analysis of the legal aspects are important as they want to understand exactly why certain language is being used and some clients just don’t want any details. It is our job to determine what our clients want from us both in terms of the estate plan but also the proper level of detail in explanations of the law.
    Ryan Velo-Simpson recently posted..Washington Trusts- Disclaimer Trust

    • Scott
      May 19, 2011 at 8:13 pm

      Ryan–

      Thank you so much for stopping by! On the other hand, if you keep doing as good of a job at keying in on the main points of my posts, all 6 of my readers are going to flock over to your blog! ;)

      I fully agree with you. Sometimes clients are quite overwhelmed with the whole process and seem to need a brush-up on basics, but then some of my brilliant explanations result in eyes glazed over. But a lot of the fun is in gaining the experience to achieve that balance you discuss, isn’t it?

      I look forward to reading more of your work!

      Scott

      Ryan Velo-Simpson is an estate planning, probate and business attorney out of Seattle, Washington. After years of building quite an impressive resume (see more here), he became a solo practitioner. He is also part of the new wave of estate attorneys offering clients a “virtual” law office, which enable clients to receive a full range of services online, and regularly discusses such technologies and his practice on his friendly and informative blog. I greatly appreciate him stopping by.

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