GPSOLO October/November 2007
Estate and Trust Law
When I took the basic “estate and trust” course in law school, I recall thinking that it was a dreadfully boring topic and I suspected that I would never use any of the information that I gathered there. I couldn’t have been more wrong on either front. Estate planning is a vibrant area of the law that touches not only those contemplating distribution of their assets upon death but also individuals planning to share their lives and assets either outside or within the bonds of marriage, those planning to dissolve a marriage, and those who want to initiate a plan for others to make financial and health care decisions for them or for their children in the event they are incapacitated.
An estate attorney may prepare supplemental needs trusts for special needs children who could outlive their parents. Other clients may want to provide support for various family members who are not able to manage their own assets yet need support that will continue after the client’s death. Some clients want to ensure that their pets are cared for after their demise and that family businesses are appropriately devised. They may want help in organizing their matters to ensure that their wishes reagrding organ donation or burial preferences are honored. The estate planner needs to be able to listen carefully to the client to determine what special needs the client may have and be prepared to pull together a plan that will survive the client but allow his or her wishes to be followed.
An estate planning attorney will likely need to help clients to understand that a will cannot empower loved ones to make decisions about termination of life support, organ donation, or even pay the bills in the event of the client’s incapacitation. The last will and testament should be accompanied by a power of attorney that may or may not include a health care directive, a living will to permit the withdrawal of life support mechanisms, and an advanced guardianship directive for the client and any minor children, along with one or more trusts.
The same attorney may often assist the client in determinations about family businesses, jointly held assets, and even prenuptial agreements. Blended families can often provide the impetus for couples contemplating marriage to preserve a portion of their assets for children from previous marriages. Designing estate plans for clients in domestic partnerships who are concerned that their partners be permitted to make medical decisions for them often feels like solving a jigsaw puzzle.
An estate attorney may be called on to validate the client’s mental state at the time of will preparation. When wills or trusts are challenged, the estate attorney must be prepared to defend the deceased or incapacitated client’s state of mind and help ensure that the client’s wishes are followed. When a client passes away, the estate attorney may be one of the first people called to guide the survivors in honoring wishes that might not always have been made clear to the family. An attorney who has prepared many wills likely will recognize former names in the local obituary column and often will assist in the probate process after the client’s death. The attorney will also likely be well acquainted with laws regarding probate procedures, including ancillary probate processes impacting real property for clients domiciled in other states.
Most estate lawyers develop their own documents for routine matters but call upon legal treatises or software to assist with special circumstances. The GP|Solo Division has an active Estate Planning, Probate, and Trust Committee and has published several useful tools, among them, A Lawyer’s Guide to Estate Planning and Estate Planning for Same-Sex Couples. The American Bar Association’s Real Property, Trust and Estate Law Section is an essential resource. Solosez, the ABA’s most active listserve, is a valuable tool for attorneys who want to brainstorm about how to solve an unusual challenge.
Estate planning is a highly complex and emotionally charged area of law. The estate lawyer may be the only attorney whom the client ever meets, and the client needs to have confidence that the attorney will listen carefully and ensure whom the client’s goals are met. In short, the estate lawyer is in a unique position to become very well acquainted with clients and their families and needs to be available to assist clients through incapacity and before and after death. Although estate lawyers are found in large firms, solos and small firms are often favored by clients who want to have a closer relationship with their legal advisor on these most personal details. Recognize that the area has become more and more complex and specialized and that it involves more than simply using cookie-cutter will documentation. Estate planning can be financially rewarding, but more importantly, the attorney-client relationship is itself rewarding, and the comforting of grieving family members is a critical part of the practice.
Vicki Levy Eskin practices in Longwood, Florida, and may be reached at email@example.com.