Choosing an attorney to assist you with your life and estate planning documents can be one of the most important decisions you can make. Having the wrong documents can create confusion, added expenses, and cause delays in a time of crisis. The worst part is believing you and your loved ones are protected and not realizing you were wrong until it is too late to do anything about it. By finding the right attorney the first time to assist you with creating a comprehensive, effective life and estate plan that helps you reach your goals, you can avoid the chaos. Instead when your documents are needed most, you will find things ordered, efficient, and administratively inexpensive. Here are five questions to ask your attorney before getting your documents done. On the following pages are the five questions to ask professionals when interviewing them about Partner Protection Planning and the differing answers you are likely to receive. At the end of the five questions is a scoring sheet to assist you in making a decision about working with a professional or not. Please keep in mind that these are guidelines, and you should always use your own best judgment in finding the right professionals to work with you.
1. Do you generally recommend or discuss Wills, Separate Revocable Living Trusts, or a Joint Revocable Living Trust for couples?
_______ Wills (0). Except for doing nothing, this is the worst answer, especially if the professional follows it up with “you don’t have enough assets to warrant use of a trust.” This shows that they are either woefully ignorant of the problems loved ones can face during the probate process, or they figure they can make a lot more money helping with the bureaucratic tsunami known as probate later. Either is unacceptable. Take off an additional 5 points if they argue “the probate fees in our state are not that high.” What they are saying is that court costs are not high, but what they charge to handle probate paperwork probably is.
_______ Separate Revocable Living Trusts (15). At least they are on the right track by understanding that you can and should avoid probate, but they do not understand that one document can protect a couple while still maximizing tax benefits.
_______ A Joint Revocable Living Trust (20). If they generally recommend using a joint revocable living trust for a couple but discuss separate property agreements, then they are more on the correct track, especially if the couple is not married under state law. If they discuss using separate revocable living trusts or joint revocable living trusts depending on the situation, then also give full credit
2. What courses or instruction have you received in estate planning?
_______ Nothing or little (0). If the attorney or other professional only attends continuing education courses in estate planning every few years, then give them the opportunity to discuss the courses they have had and any independent research they may have made. If you have read Estate Planning for Married Couples, Estate Planning for Domestic Partners, The Gay Marriage Alternative, The Anti-Probate Revolution by Jeffrey G. Marsocci, or The Living Trust by Henry W. Abts III and you know more than they do about life and estate planning, then they definitely deserve 0 points.
_______ Some estate planning (10 points). An attorney or other professional who understands general estate planning principals and keeps somewhat up to date, maybe once a year they may be good attorney to work with. Ask about their own independent research and be forgiving in granting the 10 points if they have done some research into life and estate planning.
_______ A lot of general life and estate planning education and training (20 points). If the professional attends at least three courses per year in life and estate planning, then they are making strong efforts to obtain the right information and training. Give an additional 5 points if the professional teaches life and estate planning classes to other professionals.
3. How should our accounts and home be titled?
_______ For an unmarried couple or individual with their children/beneficiaries–joint with a right of survivorship (0 points). If the professional simply says assets should be titled as joint with a right of survivorship between unmarried couples and does not mention anything about gift tax forms, then they clearly do not understand the ramifications of the federal gift tax.
_______ If a married couple, joint with a right of survivorship. (5 points) While this does delay probate until the second person passes on, it also guarantees probate on the second passing and also cuts out a substantial opportunity to avoid unnecessary estate taxes.
_______ For unmarried couples, through a joint revocable living trust with no mention of a separate property agreement (10 points). At least with joint revocable living trust, the professional understands the principles of avoiding probate for multiple situations, but the gift tax is still a problem for unmarried couples.
_______ For unmarried couples, retitle accounts in name of a joint trust but only with a Domestic Partnership Property Agreement, or for married couples in the name of a joint revocable living trust (20 points). Here the professional is showing that they understand the problems with the gift tax for unmarried couples and they have suggested the optimal solution of avoiding probate, providing joint control, and avoiding the federal gift tax. For married couples, the gift tax does not apply.
4. What percentage of your work is in the life and estate planning area, excluding estate administration.
_______ Less than twenty-five percent. (0 points). An attorney who spends less than twenty-five percent of their time on planning estates is not focused enough. If they start to argue that they spend more than twenty-five percent of their time administering the probate estates of deceased clients, then that just reinforces the need to look elsewhere because good planning should have avoided probate.
_______ Between twenty-five percent and fifty percent. (5 points.) Here they are spending a more significant amount of time in the planning area, but it is still not even half of what they do. Again, probate administration should not count.
_______ More than fifty percent but less than seventy-five percent. (15 points) This shows that they are spending a majority of their time on the life and estate planning area, but they are splitting their time with other areas. Still, probate administration should not count.
_______ More than seventy-five percent (and again excluding probate administration). (20 points) They are definitely focused on life and estate planning as the main portion of their practice.
5. What precautions can I/we put in place to make sure the right people are calling the shots if I become ill?
_______ “There isn’t anything you have to do” or “there isn’t anything you can do.” (0 points). If you get either answer, then run far and run fast. Marriage or civil unions only handle the first person being in charge and ignore the backup people.
_______ “We should set you up with a healthcare power of attorney and a durable power of attorney, and that will take care of everything.” (10 points). They have the basic documents used to empower each other during life, but sometimes financial institutions insist on their in-house form being used. During a time of crisis, delays and denials because of “incorrect forms” are no comfort.
_______ “While we should use a healthcare power of attorney and a durable power of attorney, having your own revocable living trusts and naming each other as a co-trustees and providing a list of successor trustees can provide a more seamless transition if one or both of you become sick.” (20 points). They clearly understand the principles around the “life” part of life and estate planning, but it is still not the top answer.
75-100+ The professional clearly understands the principles surrounding life and estate planning, and using their services are likely to get you the maximum planning effectiveness available under the law.
60-74 All things considered, they are probably ahead of other attorneys and professionals, but they are not the best choice. However, they show promise and if they are willing to put in the research, then they may be worth pursuing… especially if there are no other professionals within your area with a better score.
50-59 A borderline walk-out. Without a strong willingness on their part to learn more about life and estate planning and get up to speed, it is time to leave.
49 or lower They clearly are not suited for giving you effective life and estate planning documents and services. Thank them for their time and leave.
As an added note, while the most important goal for you may be gaining the life and estate planning documents available, professionals in the 60-74 point range above are still worth considering if they are willing to learn the principles behind the planning. You also have to always be comfortable with the professionals you work with, so a professional you like with a good understanding of the basics who is willing to learn may be a better fit for you than a professional with higher scores whom you simply do not get along with. And remember that these questions are not legal advice but merely information to help you in choosing the right attorney. Please keep this in mind when choosing the right attorney for you.