Creating an estate plan protects you, your loved ones, and your assets in the event of your death or serious illness. It is estimated that about 55% of Americans die without having a will or estate plan in place. Some reasons for this high percentage are the misconception that only wealthy people prepare wills, trusts, medical directives, and guardianships, and the fact that many people find it uncomfortable talking about the end of their lives. However, as long as you own any valuable property or have dependents that will need to be taken care of if anything should happen to you, then you need to create an estate plan. An experienced estate planning attorney near you can gently guide you through this uncomfortable process while also making sure that all your wishes concerning the distribution and management of your assets are properly documented and executed as when due.
Estate planning attorneys are experts in the probate process and they are also well versed in the different federal and state laws concerning wills, trusts, estate taxes, and power of attorney. Some tasks that require the assistance of an estate planning attorney include:
- Answering any questions that you have concerning estate planning
- Creating a will
- Choosing your beneficiaries
- Determining how your assets will be distributed
- Setting up and managing a trust
- Minimizing or eliminating estate taxes
- Establishing a durable power of attorney and a durable power of attorney for health care
- Appointing guardians for your underage children
- Handling your residuary estate
- Prepare for unforeseen situations like the death of a beneficiary to your estate
- Finding ways to avoid the probate court process
Estate planning is a delicate but serious procedure, and supposedly minor things like a missing signature or one wrong word can invalidate the entire process. Therefore, it is important to make sure that any estate planning attorney you are hiring near you is experienced and skilled enough to handle the job. To do this, you should ask the following questions:
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Where Are You Licensed to Practice Estate Planning Law in the State You Are?
Estate planning matters are generally filed in state courts and so it is important to make sure that your estate planning attorney is allowed to practice law in your state of residence.
Before an attorney near you can be licensed to practice estate planning law, this attorney must have obtained a bachelor's degree, passed the LSAT administered by the Law School Admission Council, and completed three years of education in an accredited law school. After completing law school, the attorney is required to pass a bar examination. The requirements for this examination are determined by the state that administers it. Only after passing the bar examination can an attorney be licensed to practice law. Because bar examinations are state-dependent, estate planning attorneys that wish to practice in multiple states will be required to pass the bar examination of each of these states. You can confirm if your estate planning attorney is licensed to practice in your state of residence by contacting your state's bar association.
Note that although probate cases and other estate planning matters are generally under state jurisdiction, federal courts may hear some of these cases. However, this usually only happens in issues with diversity jurisdiction where the plaintiff and defendant are from different states and the amount in controversy is more than $75,000. To practice before a federal court, an estate planning attorney must be sworn in by that particular court. Some federal courts admit attorneys that have been licensed by any state's bar association, while others admit only attorneys that have been licensed by the bar association of the state where the court is located. If your estate planning matter is filed in a federal court, you can contact the court to find out its attorney admission requirements and confirm if your estate planning attorney has been sworn into its practice.
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What Kind of Estate Planning Work Do You Handle?
Estate planning generally involves protecting your assets while also making sure that your loved ones are well taken care of in the event of your death. As such, estate planning law cannot be neatly divided into different categories because its practice areas blend together. However, whatever your reason for hiring an estate planning attorney near you may be, your estate plan should consist of the following components:
- Wills and trusts: a will is a legal document that contains instructions on the distribution of your assets while a trust is a legal entity that is given control of your assets and manages it on behalf of a beneficiary. The main difference between a will and a trust is that a will only takes effect after you die while a trust takes effect as soon as it is created.
- Durable power of attorney: this is a document that grants a person the authority to act on your behalf and make financial or legal decisions if you are incapacitated or unable to do so. A variant of this known as a durable power of attorney for health care designates a specified individual to make important healthcare-related decisions on your behalf.
- Designated beneficiaries: any estate plan that you create must mention at least one mentally competent adult beneficiary by name, otherwise the fate of your assets will be decided by a probate court.
- Designated guardians: this is important if you have underage dependents. If you die without naming a guardian for these children, then a court may have to determine where or who they end up with.
- Letter of intent: this is simply a letter with instructions for either your beneficiaries or the executor of your estate on matters like funeral arrangements or steps to take concerning a particular asset.
Always make sure that your estate planning attorney can competently create an estate plan that incorporates all these components in a way that clearly defines your wishes.
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How Long Have You Been in Practice?
You should always find out the level of experience that your estate planning attorney has. Estate planning attorneys near you with years of experience under their belts are generally more knowledgeable about state estate and inheritance tax laws and they are also less prone to errors, either in documenting the estate plan or executing it. This is very important because these types of errors can lead to a long and drawn-out probate process.
The number of years that an attorney or law firm has spent practicing is usually displayed on their websites, and you can contact your state's bar association to verify it. Based on the American Bar Association's recommendations, it is also a good idea to request a breakdown of your estate planning attorney's practice. Study this breakdown and determine the volume of work done by your attorney and how much of this work is related to estate planning.
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Do You Charge Fixed or Hourly Fees?
Like every attorney, estate planning attorneys near you use various fee structures when billing clients for their services. These include:
- Fixed fees: with this fee structure, you are charged a flat fee for a specified service. This type of fee structure is used in situations where your estate planning attorney can quickly access your needs and come up with a necessary estate plan. Flat fees can range from $300 - $1,500 or more.
- Hourly fees: estate planning attorneys may charge hourly fees for matters that require extra finesse and work. This usually happens in situations where coming up with a proper estate plan requires your attorney to spend time coordinating with your financial planner or other professionals involved in the running of your estate. Hourly fees generally cost an average of $150 - $350 per hour. Note that with hourly fee structures, you may be required to pay a retainer upfront.
- Contingency fees: this type of fee structure is usually only used in cases that involve lawsuits or settlements. With this fee structure, your estate planning attorney is paid a specified percentage of any negotiated settlements.
Always find out the fee structure that you will be billed with. You should get the details of this fee, what it covers, and any available payment plans in writing. It is also a good idea to find out your estate planning attorney's preferred method of payment, whether it's via cash, checks or digital methods like debit cards, credit cards, and mobile wallets.
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Do You Charge for an Initial Consultation?
Many estate planning attorneys generally offer free 30 minutes to one-hour initial consultations. However, you should always confirm this when setting up a consultation appointment with your attorney. An initial consultation is important when hiring an estate planning attorney near you because it helps you determine whether you and this attorney are a good match. During this consultation, you should discuss issues like the attorney's fee structure, confidentiality requirements, and the goals and objectives that you hope to achieve with your estate plan.
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How Do You Keep Clients Informed about Their Case?
Find out how you can contact your estate planning attorney easily. Attorneys, including estate planning attorneys near you, are ethically obligated to promptly respond to any reasonable requests for information from their clients and also keep them informed of the status of any ongoing matters. Come up with a schedule for receiving regular updates from your estate planning attorney and discuss the available means of receiving these updates. This can be in-person, via phone and video calls, by email, or through paralegals and legal assistants. Also, find out if you will receive periodic reviews of your estate plan to determine whether your goals and objectives have changed or when your state estate tax and inheritance laws are altered. Note that you may have to pay for this if it is not included in your agreed fee structure.
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Who Will Actually Do the Work?
Many estate planning law firms hire paralegals to assist attorneys with their workload. These paralegals perform several duties ranging from drafting estate planning documents and assisting in the valuation of estates to preparing and filing probate documents for the administration of an estate and participating in the administration of trusts and guardianships. The amount of involvement that a paralegal will have in planning your estate is usually determined by your estate planning attorney. As such, you should always confirm this with your attorney and make sure that any work done by the paralegal is properly supervised per the American Bar Association's model rules of professional conduct. Paralegal fees are generally less than those of licensed attorneys and so it is also a good idea to find out how the involvement of these paralegals will affect your total bills.
It is important to note that the scope of a paralegal's duties does not extend to giving legal advice. Paralegals are not licensed legal professionals, and so they are explicitly forbidden from doing this and also from setting their fees or arguing cases in court.
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Can You Provide References from Former Clients?
Getting positive reviews on an estate planning attorney near you from former clients bolsters your confidence in the attorney's skills and expertise. In addition to directly asking your estate planning attorney for references, you can visit your attorney's website and go through the client testimonials posted there. Alternatively, you can get online reviews on your attorney through third-party websites like Google Review and Better Business Bureau. Finally, you can contact your state's bar association to find out whether any past or pending complaints and disciplinary actions have been recorded against your estate planning attorney.
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What Is Your Success Rate?
Because estate planning matters do not typically involve court trials, estate planning attorneys do not generally keep wins and losses records. However, you can determine how successful an estate planning attorney near you is by the number of positive referrals that the attorney gets. Visit your estate planning attorney's website and look for a testimonials page. The reviews posted there should give you a broad idea of your attorney's legal competence, and other important qualities like compassion and customer service skills. You can also visit local probate courts in your area of residence to get information on your attorney's courthouse demeanor and to access any public probate court records for cases that your attorney was involved in.
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When Should I Hire an Estate Planning Attorney?
You should hire an estate planning attorney near you to help you set up a proper estate plan if you belong to at least one of the following categories:
- You have assets or properties that are located in more than one state
- You are a business owner that needs a plan of succession
- You own more than one business
- You own foreign assets or properties
- You have substantial assets in IRAs or 401(k)s
- You want to disinherit an immediate member of your family
- You want to leave property to a person that is not a citizen or legal resident of the United States
- You have underage children
- You have a blended family
- You have immediate family members with special needs
- You receive Medicaid care
- You want to set up an irrevocable trust
- You want to leave either part or the entirety of your estate to an organization
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What Are the Typical Qualifications Held by an Estate Planning Attorney?
Estate planning attorneys in the United States are required to obtain a state-issued license from the supreme court of the state that they intend to set up their practice. This license is issued only after the attorney has completed at least seven years of education, obtained a bachelor's degree, a law degree, and passed a state-administered bar examination. After obtaining a license, some estate planning attorneys join professional associations like the American Academy of Estate Planning Attorneys and the American College of Trust and Estate Counsel. Some states like California, Florida, Louisiana, Ohio, and Texas, as well as the National Association of Estate Planners and Councils, also provide legal specialization and board-certification opportunities for estate planning attorneys.