THE PROCESS FOR A CUSTOM PLAN
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 ten steps. Your attorney may follow seven or fifteen steps. But make sure those steps can be fully articulated. If not, look elsewhere.
Here’s a quick summary of our approach:
1. Education of the client starting with a seminar or book
2. Detailed diagnostics: Who are you? Who belongs to you? What are your assets?
3. First attorney meeting
4. Review of all data by a senior paralegal
5. Input of data to professional software
6. Review of software inputs by a second attorney
7. Creation of draft documents by the software
8. Client receives and reviews documents
9. Client signs documents
10. Continuing client education and regular plan reviews
In Step 1, we want to make sure that the client gets a basic education in 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 who has dressed in the traditional blue suit, white shirt, and red tie which says, “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. Other firms will host radio shows, produce webinars, or write books like this one. 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. The longer the list you develop, the better. Who will make medical decisions for you if you get sick? Who’s going to be in charge of your money? Who’s going to be in charge of your kids? Your disabled dependents? Who will handle your trust administration? The more advance 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.
In Step 2, 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.
STEP 3: 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 which might otherwise get lost down the line.
The older I get, the longer my first meetings tend to run. I admit that when I was first starting out as an estate planning attorney, first meetings might last just twenty minutes. That was when I didn’t know what I didn’t know.
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.
Earlier I spoke about a twenty-five-year-old still at home, playing video games and smoking dope. But often it’s far worse. 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 lay 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? What will her brother and sister do?’”
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.
CREATING THE DOCUMENTS
After I have all the data and have unearthed all the issues, in Step 4, I will have an internal meeting with our senior paralegal.
No doubt, I did not say enough good things about paralegals earlier. I will tell you, as a lawyer, those meetings often offer me a heavy dose of humility. 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. We sit down and go over everything. I use my “lawyer brain” to ferret out issues, and the paralegal uses their “paralegal brain” to dot the i’s and cross the t’s.
In Step 5, 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 fifty 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. As I noted in the Introduction, such software now leads to highly tailored and customized estate plans and saves our clients tens of thousands of dollars over manual processes.
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.
THAT IMPORTANT STEP 10
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.
As discussed in the Introduction, 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.
Never skip a review. After reading the above, I hope you no longer believe in a “generic trust.” And I hope you no longer see any substitute to working through your issues with an experienced attorney. But please recognize that even the best attorney cannot write an estate plan which will stay relevant no matter how your issues change.
For more information on how we can help you through our process, contact our team today.