Everyone needs an estate plan, whether it be something as simple as a will or complex as a revocable trust. It is important that every individual have these documents to direct his or her loved ones on what happens to his or her personal belongings and debts after death, as well as who will take care of the person’s minor children in the event of his or her death. An estate planning attorney is normally the individual who helps prepare these documents, but this brings the question many individuals ask: What does an estate planning attorney do?
What Are an Estate Planning Attorney’s Responsibilities?
The responsibilities of the estate planning attorney depend on the goals of the client. The attorney’s first responsibility is to meet with the potential client to discuss his or her life situation, get a good idea as to what the person’s goals are, and to advise him or her on the best options in an estate plan.
The attorney works on preparing the estate documents, including a last will and testament, powers of attorney, healthcare directives, living wills, and trusts. If the attorney prepares a trust, he or she may also work with the client on preparing associated documents to ensure that the goals of the client are met even after the trust is executed. For instance, for a trust to be truly effective, the property of the grantor of the trust needs to be funded into the trust. For real estate, this transfer means that the grantor must not own the home outright but rather the grantor can own the home as the initial trustee of the revocable trust. If the trust is irrevocable, this ownership would transfer to the irrevocable trust and the third-party person named as the initial trustee.
If the client wishes to plan for long-term care and has concerns regarding Medicaid, an estate planning attorney can work with the client on drafting the proper documents to ensure that his or her assets are protected, and the person can still go into long-term care in the event of illness or incapacity.
An estate plan also does not end simply with the client signing the documents. Most estate attorneys will stay in contact with their estate clients to communicate with them and ensure that their life situations have not changed such that their estate planning documents need to be modified.
The Estate Planning Attorney Job Description
An estate planning attorney is a bar-certified attorney who focuses his or her practice on assisting clients in preparing for their eventual death or even potential incapacity. The attorney will need a basic legal background and license to practice law in their state, but an attorney who focuses his or her practice on estate planning. They work with the client to draft legal documents that include last wills and testaments and trust documents. The attorney’s background is such that he or she will be able to advise the client on the best estate plan for the client’s situation. The estate attorney will also draft associated documents, such as powers of attorney and healthcare directives, to help the individual prepare for what would happen in the event of incapacity.
An estate attorney will be able to work with the client on ways to reduce taxes or fees that would otherwise be imposed on the estate, so the job requires not only an understanding of probate and estate planning law, but also knowledge of tax law. Many times, lawyers will also work with related individuals who are connected to the estate, so the job description also requires some knowledge of family law. An estate planning attorney will also work with other professionals connected to the client’s retirement plan and life insurance policies, so a cursory background understanding of these issues is important, as well.
Do I Need an Estate Planning Attorney?
With the popularity of “do-it-yourself” estate plans on the Internet, many individuals believe that they can prepare their own wills or living trusts through these online services. The product that many of these web sites produce is prepared by a legal staff, but most of these forms are basic and only cover a very simple estate. Everyone’s life situation is different, which means that what one person needs when preparing an estate plan is completely different than what another individual may need. In addition, many people will prepare these “DIY” estate plans without really understanding what they are signing. Estate documents contain a great deal of legal terminology that most lay people would not understand. While hiring an attorney to prepare the documents may cost more upfront, it saves that person’s loved one’s heartache and possible legal expenses if the will or trust document is called into question later, especially if the testator or grantor of the trust signed a document that he or she would not have otherwise signed had it been clear what that person was signing. An estate planning attorney can talk over the provisions in each document, making sure that the client understands what each provision entails and the legal ramifications of the same. This explanation and background knowledge are simply not available on a pre-paid legal form site.
What Does a Probate Attorney Do?
Many times, an estate planning attorney will also handle probate matters. After an individual dies with or without a last will and testament, a probate case will need to be opened. This can be done by the next of kin, in the event the person died without a will, or by the executor or personal representative named in the deceased’s will. However, most individuals are not fully aware of all of the proper steps that need to be taken in the probate process, so having a probate attorney assist in filing the will and petition to open an estate can be helpful.
The steps required in probating an estate vary depending on the laws of the state where the deceased lived at the time of his or her death. The laws will also vary depending on whether the individual left a will or died intestate, meaning without a will. The person responsible in the will document will need to file an inventory with the court regarding what assets and debts the deceased had, will need to be responsible for closing any financial issues, including taxes, and will also need to ensure that all claims are met, if any are filed against the estate.
The responsibilities can be a lot for even the most educated person to handle. A probate lawyer can be extremely helpful in handling all of these filings, ensuring that they are done correctly. Payment arrangements can normally be worked out if cost is a concern, and many probate attorneys are paid from the estate when the case is complete or paid from the decedent’s bank account by the personal representative as costs arise. A probate attorney is almost always needed if any of the decedent’s creditors file a claim against the estate or if any family members of beneficiaries challenge the validity of the last will and testament.
Is a Lawyer Needed for Probate?
It ultimately depends on how complex the legal situation is when determining whether an attorney should be retained. If the estate involves a great deal of assets and debts, and it is expected that disputes will come up with beneficiaries or creditors, it is recommended that a probate attorney be hired.
If the deceased died with very little assets and a simple small estate affidavit is all that needs to be filed, the personal representative appointed in the will may be able to handle this matter without the assistance of an attorney.
No one situation is the same, so it does ultimately hinge on the facts of the case. It is a good rule of thumb to at least get an attorney’s opinion before deciding how to go forward. Contact a probate attorney for a brief consultation to discuss the facts of the case before deciding to go alone without an attorney’s assistance. Many attorneys will meet for a free consultation at the minimum and will be able to give brief advice on the matter. The client can then make the decision on whether to hire the attorney or proceed independently.
What Are the Typical Fees an Estate Planning Attorney Will Charge?
Many different factors go into determining how much the estate planning attorney will charge for his or her fee. These factors include where the attorney is based, how complex the legal work involved is, and the experience level of the attorney. Many estate attorneys will charge a flat fee to prepare the estate documents. It generally costs more for the estate attorney to prepare a trust document due to the work that goes along with creating and funding a trust.
If the person only wants a basic estate package, including a will and not a trust, the fee can be lower. For drafting a simple will, a flat fee can range from $150 to $600, but for a trust, the flat fee can get as high as $2,000. Occasionally, an attorney may charge an hourly fee over a flat fee arrangement. Hourly rates can be anywhere between $100 to $500 for hour depending on where the attorney is located and what is required. However, hourly rates can tend to get fairly costly, and it is for this reason that many choose the simpler, flat fee arrangement. If the attorney is hired to handle a probate matter, the attorney will normally request a retainer upfront and will charge an hourly fee from that retainer.
Tips for Hiring an Estate Planning Attorney
Deciding to hire an estate planning attorney is a complicated decision. Because estate planning is an intensely personal matter, the potential client needs to feel comfortable with his or her decision first. A few helpful tips should be kept in mind when choosing an estate planning attorney.
First, if the attorney specializes in this particular area of the law that can be a huge plus. Many attorneys prefer to consider themselves to be general practitioners, doing a little bit of everything, but if the person focuses his or her practice on estate planning, the client can be assured that the attorney is well-versed in the law and knows all of the most recent updates needed to properly prepare the estate. It is very similar to going to a medical specialist for a specific problem.
The attorney’s education and experience also play into choosing to hire the attorney. It also helps to find an estate planning attorney who handles the matter from a holistic approach, meaning he or she is not simply preparing the forms but is really working with the client on what that person’s situation is, what his or her goals are with the estate plan and intends to remain in contact with the client as life progresses to ensure that the estate plan works with that person’s current needs.
The estate planning attorney should also be someone the client feels comfortable communicating with, someone with whom the person feels comfortable sharing information. The first attorney consultation is important in establishing this connection and allowing the client to get a good “feel” for whether this attorney will be a good match for him or her. Referrals from other professionals also go a long way in knowing that the attorney is someone who is well-respect in his or her field.
Also, it helps to do some Internet research on the attorney before meeting with him or her. Look into the attorney’s background and see if he or she has a disciplinary record. Read any reviews that may be online from previous clients who have worked with the attorney. While a few stray trolls may appear here and there, if the bulk of the online reviews are positive that can tell the client a lot about what working with this attorney will be like. Do the homework before making the call. That extra effort can go a long way.
Sources:
https://www.thebalance.com/what-is-an-estate-planning-attorney-3505707
https://www.thebalance.com/what-is-a-probate-lawyer-3505259
https://learn.org/articles/What_Do_Estate_Lawyers_Do.html
