The following is adapted from Savvy Estate Planning.
I’ve been working in the field of estate planning law for over 20 years. In that time, I’ve met with hundreds of people, and I’ve seen every kind of situation you can imagine.
One of the things my experience has taught me? Taking a “cookie cutter” approach to estate planning doesn’t work. That’s because every situation is different, and there’s no way to capture all the nuances of every situation through a copy-and-paste template, or by filling out some questions online.
For example, in my firm, we follow a highly defined process to make sure we’ve turned over every stone, followed up on every clue, leveraged our “lawyerly thinking,” and crafted the best possible estate plan for our clients. Our process happens to have 10 steps.
This is not to say that all attorneys must have a 10-step process. Your attorney may follow seven or 15 steps. The point isn’t that everyone should do exactly what we do. The point is that it’s important to work with someone who has a process for creating a custom estate plan. That person should be able to fully articulate those steps, as well. If not, you should look elsewhere.
To help you vet the attorney you’re planning to work with to set up your estate plan, I want to share our process. That way, you have a good sense of what should be involved, from start to finish. Again, this isn’t the only way, but educating yourself about what might be included can help you make an informed decision.
Our first step is always education of the client, starting with a seminar or book. That’s because we want to make sure that the client has a basic understanding of the issues and processes of estate planning.
We don’t want anyone to come in and sit blankly in front of an all-knowing lawyer whose whole demeanor says, in essence, “be quiet and listen to me.” That kind of relationship might be fine in some legal work, but not in estate planning, which requires a true give-and-take.
No lawyer can possibly know all the issues pertaining to your individual circumstances, so you are going to have to become educated enough to have a proper discussion. And you are going to have to trust him or her enough to discuss some of the most difficult areas of your family life.
Like many firms, we educate our clients with a seminar. Increasingly, following the impact of COVID-19, these are happening virtually over the internet. Other firms will host radio shows, produce webinars, or write books. But a good estate firm is always educating, educating, educating.
In this way, a client comes in empowered, not just with an understanding of the process, but with knowledge of how to identify personal issues and questions. Bottom line, the more advanced work you do, the better you will use your attorney’s time, and the more tailored planning he or she will be able to do on your behalf.
After educating the client and identifying key issues, our office performs a detailed “diagnostic.” When you go to a doctor’s office, the staff will ask what medications and vitamins you are taking. They’ll check your temperature and blood pressure. They’ll run some blood tests.
In our office, we set out to understand your family structure, your asset structure, and of course, your hopes and dreams for the legacy you wish to leave for the next generation.
I should note that the diagnostic process is more extensive for people with very large and complex estates—over, say, $10 million in assets. In such cases, we often need a number of extra discovery steps before we can move to serious planning.
In any case, we really do need all the details! Trust me: providing your attorney with all the information you can, as well as doing some advance thinking about the issues, will go a long way toward making the process smooth, complete, and smart.
Once we have all the details, it’s time to set up the first attorney meeting. That first sit-down meeting in the estate planning process often proves crucial. I always insist that an experienced attorney, not a paralegal or support staff, handles the initial, in-depth discussion. An attorney “thinking like a lawyer” will immediately see issues that might otherwise get lost down the line.
My goal in that first sit-down is often to identify any “pain points.” Usually, these are not just financial, but personal. The pain points can be highly emotional: estranged children, angry ex-spouses, troubled businesses. Difficult, but vital to discuss.
For example, maybe a client will say, “I’ve really been struggling. My daughter has an addiction, and it’s destroying her life. Right now, if I were not supporting her, she might be living on the street. I don’t know how to deal with this. I lie awake at night, and I think, ‘My God, if something happens to me, what’s going to happen to my child? What if she gets too much money? Would that kill her?’”
Or a man might say, “We don’t have enough money. If something happens to my spouse, I can’t live on one salary. What can we do about that?” Or, “I’m worried that the stock market will crash. We’re retired and everything is invested. What if we outlive our money?”
Some of these issues may seem outside the scope of estate planning, but we try to include every issue—often with the help of allied professionals. Clients must feel comfortable bringing all their “stuff” to the table at that first meeting. No guilt, no blame: we just look each question straight in the eye.
After I have all the data and have unearthed all the issues in Step 3, I will have an internal meeting with our senior paralegal.
A good paralegal will make sure every single data point has been covered, all the questions answered, all the proper diagnostics run, all the account numbers discovered, all the investment vehicles identified, and all the client properties recorded.
Next, we leverage the technology, which will do the initial assembly of all the documents for a complete estate plan. The software requires extensive data input. A specialized, attorney-level package will ask us far more than the 50 or so questions in an online trust-creation algorithm. It will require 400 to 500 responses, leading to highly customized drafts.
This process is not a substitute for human judgment, but a tremendous aid to human brainpower and efficiency. However, since neither I nor the paralegal is perfect, in Step 6, we assign a qualified attorney to the task of reviewing the software inputs.
Only then does the software do its thing and create the draft documents, which are sent for client review, along with highlights on key issues. Attached notes might read, “Is this exactly what you meant regarding that property?”
I’m compressing the steps, but I hope you understand the value of a defined process with multiple checkpoints and attorney reviews before anything gets to you for your review.
This step is more important than you might realize. All too often, people simply do not get around to signing documents they’ve had prepared, be they trusts, transfers of property to trusts, powers of attorney—you name it.
Whether the issue is hesitation or procrastination, the results can be disastrous. That’s why we work closely with clients to make sure they actually sign the documents. After all, if you don’t sign, then no matter how great your intentions are or how much time and effort (and money) you’ve spent working with an attorney to create them, they won’t mean anything.
If you don’t sign, your heirs may have to go through a long, expensive, protracted, and potentially nasty process to try and make sure your intentions are carried out. Better by far not to skip this step.
After an estate plan is signed, Step 10 includes continuing client education, followed by regular estate plan reviews and updates, which are best done at least every three years or as your situation changes. Changes include a birth, death, divorce, retirement, moving to a new state, changing jobs, etc.
A modern attorney with a significant estate practice will include such reviews at no additional charge. In my firm, we believe free reviews to be an ethical obligation. If your attorney wants your plan to be successful, he or she must create no barrier to you picking up the phone with a question, or scheduling an appointment for a fresh look. Your attorney may, however, reasonably charge something for a rewrite of the plan.
The takeaway here? Never skip a review. After all, even the best attorney cannot write an estate plan that will stay relevant no matter how your issues change.
For more advice on how to create a good estate plan that will protect your legacy and your heirs, you can find the 2nd edition of Savvy Estate Planning on Amazon.
About the Author
James L. Cunningham, Jr. has been an attorney for more than two decades in the areas of estate planning, probate, trust administration, elder law, disability/special needs planning, and much more. He is one of the few attorneys certified by the State Bar of California as a Specialist in Estate Planning, Trust, and Probate Law. As founder of CunninghamLegal, he oversees six offices, along with a team of attorneys and professionals focused entirely on estate issues. James is a California native, a devoted husband, and the father of three children. You can learn more about his work at www.cunninghamlegal.com.