This is the second in a series of blogs on How to Practice in Estate Planning. I’ll sprinkle this series in among my typical timely blogs. This series is designed for attorneys who are currently practicing in another field and wish to transition to Estate Planning and Elder Law. However, many of the suggestions in this series will be equally applicable to a new attorney who is not transitioning from another area.
Step One was learning how to approach the practice of law as a business. Step Two is learning the basic substantive knowledge you need to practice in the estate planning area. As I mentioned in the first blog in this series, there is a near-infinite amount of knowledge which comes to play in estate planning. Let’s look at some methods to start you on your learning quest.
Go online. Read your state trust / probate code. Reading the trust and probate code is an essential part of your estate planning practice. You do not need to memorize the entire probate code, but you should be aware of the probate process in your state, what would happen if someone died intestate, and other similar items. You can get read the relevant federal tax provisions online, as well. The federal tax code is Title 26 of the US Code. Here is a link to Cornell University’s online law library’s Internal Revenue Code. The most important income tax provisions from an estate planning perspective are sections 1014 and 1015, which are rules for carryover basis on gifting and step-up basis upon death, and 671-678, which are the grantor trust rules (rules telling when a trust is taxed as a trust and must file a 1041 and when it may be taxed to an individual). The estate tax provisions are in the 20** range, taxation of non-resident aliens is in the 21** range, the gift tax is in the 25** range, generation-skipping taxes are in the 26** range, and special valuation rules are in the 27** range. Unless you are planning on doing significant advanced planning, I would defer the 26** and 27** range until that becomes relevant. Similarly, I would defer the 21** range if you do not have a substantial international community in your area. CCH has a convenient single book on Federal Estate & Gift Taxes which includes both the code and regulations. In addition, it includes relevant income tax provisions. I would read through the income tax provisions noted, but then just browse through the other provisions. Then I would read through the Maxfield treatise mentioned below. Again, I would not feel the need to learn every detail, but learn the purpose of each of the main provisions.
A classic treatise which is useful for a beginning in depth look at the tax perspective is Maxfield, et al., Federal Estate and Gift Taxation, WG&L. This does not presuppose knowledge, but it is rather technical. This treatise may be available in your local law library or you can purchase a copy at the hyperlink in this blog. It may be useful to have this as a desk reference.
A more accessible book is J.A. Manning, Manning on Estate Planning (7th ed.), Practicing Law Institute. This book presupposes a basic knowledge but is written in a less technical manner than the prior treatise.
If you are more interested in elder law, the National Academy of Elder Law Attorneys (“NAELA”) has some good basic resources on Medicaid and Special Needs Trusts.
Your state bar may have very useful desk books on estate planning. Such books tend to be very practically oriented. Typically, you can find them in your local law library. I suggest you visit your local law library and peruse their resources on estate planning.
While you are at the law library, you will want to browse through periodicals, as well. You will want to look at the Journal of Practical Estate Planning and Trusts & Estates. These publications are not the place to begin the learning process, but they may be useful to learn about newer ideas in the future. So, you’ll just want to familiarize yourself with them for your future potential use.
There are other premium resources. For example, The American Academy of Estate Planning Attorneys has several substantive educational courses for its members to help them transition into a successful estate planning practice, as well as more advanced sessions to keep them current on the latest techniques. These courses distill the most important aspects of what you need to know into a few days of intensive study. Of course, without such direction and interactive learning environment, you would expect your study to take longer.
As you begin your learning process, remember that you could spend a near-infinite amount of time learning this area. Read through the materials listed above and study them. You want to look through these materials through intensive, diligent, undistracted effort. But, you do not want to fall victim to “analysis paralysis,” which I will mention again later. You will want to give yourself a reasonable deadline for your initial learning. Your goal is to set the foundation, not build the entire house.
In the next blog in the series, I will discuss the importance of having forms upon which you can rely and a person who can counsel you.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555