What’s the role of an Estate Planning attorney? Is it merely to document a client’s wishes? Or is it to counsel the client regarding those wishes and then craft a plan that best fits their situation? Clearly, it’s the latter.
For example, if a client walks into your office and says they want to leave everything outright to their three children, is it appropriate to draw up a plan to do so? The proper course would be to find out more information about the three children. What are their situations?
Perhaps the first child, Betty, is 30 years old and in a rocky marriage. Perhaps the second child, John, is 25 years old and has creditor issues. Perhaps the third child, Ben, is 20 years old and has Special Needs. In each of these situations, it would be best to advise the client about the possible advantages of leaving the assets to the children in a continuing trust. This could provide divorce protection for Betty, creditor protection for John, and preservation of public benefits for Ben.
The Estate Planning attorney should explain the different relevant options available and the range of consequences with each option. So, you might explain to the client the benefits of leaving the assets in trusts with various attributes for the various beneficiaries. You’d explain the advantages and the disadvantages of the different alternatives. For example, in order to provide creditor protection in John’s situation, you’d use a trust with a third-party trustee and a completely discretionary standard. This would also require a tax return for the trust each year.
If, after a thorough explanation of the pros and cons, the client still chooses their original course, then what?
As long as the course chosen by the client is not illegal or unethical, the Trusts & Estates lawyer should carry out the client’s wishes and prepare the desired documents. Also, you should document your advice, perhaps by asking the client to sign a letter stating that you’ve advised them of the advantages and disadvantages of taking an alternate route and they’ve decided to proceed against your advice.
An Estate Planning attorney is not a mere scrivener. Our most important product is not the documents we produce, rather our counsel which is based on a wealth of professional experience based on years of technical training.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128