Estate planning is a team effort. Actually, there are two teams – the team that creates the plan and the team that implements the plan. Usually, there is considerable overlap between the two. I will begin with a description of the implementation team.
The implementation team consists of you, your attorney, your financial planner, possibly your banker, and all of the “helpers” named in your documents, such as the personal representative (executor), successor trustee (if you have a trust), your health care agent, and your financial power of attorney. These are the people who will make sure the plan is put into operation at the time it is needed. While you are alive and well, you will remain in charge and coordinate any team members necessary, often with advice of counsel.
The financial advisor and banker are necessary to make sure assets such as bank accounts and investment accounts are titles properly. Also, the financial advisor and banker can also help to confirm the appropriate beneficiary designations, pay on death, and transfer on death designations are done. It is also a good idea to make sure your successor trustee, personal representative (executor), agents, and powers of attorney know their roles. Some attorneys have workbooks and workshops for “helper” training or “successor trustee” training. It is never too soon to introduce these roles and the responsibilities that go with them.
The team creating the plan will often consist of you, your attorney, your financial advisor and banker. When a plan is created, it is important to consider the titling of assets and the beneficiary designations. In most cases, it is at the time of creation, that you will be changing the title of assets, the beneficiaries of assets, or both. With a trust-based plan, you will likely be transferring title of investment accounts, savings accounts and checking accounts into the name of the revocable living trust (RLT). It should NOT be necessary to close the account and open a new account in the name of the RLT. If the banker or account manager requires you to close the account and open a new one, I usually advise closing the account and opening a new one at a new bank or investment company. You want advisors and bankers who are reasonable and cooperative.
Choosing an attorney is sometimes more difficult. You want an attorney who either specializes or focuses their practice on the area of estates and trusts. Most states have a specialization in estates and trusts. California, for example, has certified specialists in Estate Planning, Trust, and Probate Law. In Arizona, an attorney can become an Estate and Trust Certified Specialist. To obtain these designations, the attorney must demonstrate a great deal of experience and knowledge in the area, references, and take an examination. These specialists are also required to maintain the certification with mandatory continuing legal education in their field.
On a national level, the National Association of Estate Planners and Councils offers a professional designation as an Estate Law Specialist. This designation requires a certain level of experience, continuing legal education, recommendations of other attorneys, and an examination.
If the attorney has been designated a specialist, or if the attorney has been admitted as a Fellow of the American College of Trust and estate Counsel, it is a good indication they are serious practitioners in this area. If not, however, there are other indicators. There are, for example, a few membership organizations that can indicate the attorney is focused and current in the area of estates and trusts. These are organizations such as WealthCounsel®, the National Network of Estate Planning Attorneys, and the American Academy of Estate Planning Attorneys. Membership in any one of these organizations suggests the attorney has made a significant investment in his or her education, has resources to keep current, and devotes a fair amount of time to this type of work.
Of course, you will also want to look for other activities that indicate the attorney’s commitment. Is the attorney active in the community? Does the attorney provide education to the community or to other attorneys? Does she actively participate in local professional groups regarding estate planning? Ask friends for references. Ask other attorneys. Remember estate planning is not just about the documents but about the guidance and advice your attorney will give you.
Once this research is done, meet with the attorney. Even the best qualified attorney must still be a good fit for you. It must be someone who you are comfortable with, who you communicate easily with, and who will be available for you. Sometimes you can attend a talk the attorney is giving. Sometimes you will want a consultation. Some attorneys charge for the consultation appointment and some don’t. If they do, it is usually money well spent. You will either learn it is the person for you, or not. Both valuable lessons.
Choosing the estate planning attorney is often the most important step you can take. It is worth the time and even some money to make a thoughtful choice.