What Role Does an Attorney Have in Estate Planning?

An interesting discussion came up not too long ago about what role does an attorney have in estate planning for a client. Should an attorney simply prepare documents based on the client's wishes? Or should an attorney counsel the client on the potential ramifications of the client's wishes?  In other words, is an attorney merely a scrivener or a counselor?

Obviously, an attorney's role is to prepare estate planning documents in accordance to the client's wishes. Also, obvious, an attorney's role is to prepare estate planning documents that can be enforced according to California law. If the document contains unenforceable provisions then the attorney has not done his or her role properly.

But where do you draw the line? Should the attorney strongly counsel the client not to omit a child from a Trust? Should the client be told of the ramifications for purposefully omitting a child? Does the client need to know of the possible ramifications for a legal contest?  I say yes.

In my mind, the attorney's role is clear and multi-faceted. Below is a following of the some of the roles an estate planning attorney will take on when working with their clients:

• Prepare the documents in accordance to the client's wishes and in accordance to the laws.
• Counsel the client on potential legal ramifications of their documents.
• Advise the client of other scenarios or avenues that will accomplish their objectives.
• Assist the client with funding their trust or including new assets into their estate plan.

Can you think of other roles?

Comments

[Larry]

Just another role: To not only evaluate the trust and other "new" documents, but also try to have the client take another look at other documents transferring property outside of the trust -- like IRA beneficiary designations. However, I have always had a difficult time with client resistance when it comes to looking at these other documents, even though, for example, IRA beneficiary designations may command a large percentage of the overall estate.

By the way, you have a great blog.

And as a CSULB graduate, I love the blue pyramid on the left panel of your blog...

Larry

[Jennifer Sawday]

Larry, Thanks for your kind words. I appreciate it. I agree with you that clients are indeed resistant in sharing their financial information with their estate planning attorney. Estate planning is a two-way street and if clients do not hold their end of the bargain, I learned just to let it go... of course, with disclosures.

[Stan Rule]

Jennifer:
I share your view that a lawyer has a significant role to play in estate planning. I think when preparing wills and trusts, we must ask our clients about their families, their assets, and advise on various options. If a client wants to disinherit a child, we should always ask why. Sometimes there are better alternatives, but clients don't know about them unless we offer the advice. If the will, trust or other document is challenged by an unhappy relative after the client has died, the lawyer who prepared the document may have to testify in court about the client's capacity. The lawyer's testimony is not going to be helpful if he or she cannot give the court sufficient information to prove that the client understood the nature and effect of the transaction. "I was just following instructions," doesn't cut it. On those occasions when clients are reluctant to disclose personal information, I tell them this.

[Jennifer Sawday]

Stan, As always, your comments and advice are excellent. You are correct that having to testify later about a client's capacity should make the attorney think twice about just following instructions. I hope that those clients seeking advice about estate planning from non-estate planning attorneys consider that they should seek out an attorney who specifically handles estate planning. There's nothing worse sometimes than an attorney who practices another area of law delve into the trust and estates practice. There are too many issues to be evaluated when preparing an estate plan.