What is the role of an estate planning attorney? Is it just a documentation of the client’s wishes? Or is it advising the client regarding those desires and then formulating a plan that best suits their situation? It is clearly the last.
For example, if a customer walks into your office and says they want to leave everything to their three children, is it appropriate to make a plan for doing so? The right course would be to find out more information about the three children. What are their conditions?
Perhaps the first child, Betty, is 30 years old and in a rocky marriage. The second child, John, is probably 25 years old and has credit issues. The third child, Ben, is probably 20 years old and has special needs. In each of these situations, it would be best to advise the client about the potential advantages of leaving assets for children in an ongoing trust. This could protect Betty from divorce, protect John’s creditor, and preserve Ben’s public benefits.
An estate planning attorney should explain the various relevant options available and the scope of the consequences with each option. Therefore, you may explain to the client the benefits of leaving assets in trusts with different attributes to different beneficiaries. It will explain the advantages and disadvantages of the different alternatives. For example, in order to provide creditors protection in John’s case, you must use a trust with a third-party trustee and a fully discretionary standard. This will also require a tax return for the trust each year.
If the client still chooses their original path after a thorough explanation of the pros and cons, then what?
As long as the course chosen by the client is not illegal or unethical, the Trusts & Estates attorney must carry out the client’s wishes and prepare the required documents. Also, you should document your advice, perhaps by asking the client to sign a letter stating that you have informed them of the advantages and disadvantages of taking an alternative route and they have decided to proceed against your advice.
An estate planning attorney is not just an observer. Our most important product is not the documents we produce, but our consultant who draws on a wealth of professional experience based on years of technical training.
Stephen C. Hartnett, JD, LLM
American Academy of Estate Planning Lawyers, Inc.
9444 Balboa Street, Suite 300
San Diego, CA 92123
Phone: (858) 453-2128