5 Important Estate Planning Questions to Ask a Lawyer
Walking into a lawyer's office to begin estate planning—even if it is just a simple will—can be an intimidating experience. But knowing what you are getting into can prepare you for the experience. The more you understand the process, the more comfortable you should be about planning your estate.
The estate lawyers will certainly have a lot of questions for you. To begin with, they will want virtually all of your financial and other personal information. It will help you if you have a few questions in hand to ask when you get there.
The estate planning process can be simple or complex. It can be a simple estate plan with just a will or include other estate planning documents such as trusts, life insurance, a living will, powers of attorney, taxation, gifts, retirement accounts, and other items.
Listed below are a few questions to get you started with your estate planning attorney. This list of questions is certainly not everything that you can ask, but they should lead to other questions that will help settle you into the conversation and give you the confidence to go forward with the process, knowing that you understand what is going on.
1. What do I need in my estate plan?
Your estate plan and estate planning documents should be built around a collaboration between you, your lawyer, and your financial advisor or advisors. Most people have at least a will, general or durable power of attorney, medical power of attorney, and living will. But there are many other parts of an estate plan, and you and your advisors need to decide what is right for you before you start. Ask the lawyer at the initial consultation what the best estate plan would be for you and your beneficiaries.
I'm not wealthy. Why do I even need an estate plan?
A full estate plan includes a will, but also other documents like powers of attorney and a living will. But even without a fortune to distribute, a will gives you control over a number of things after your death, including:
- Who will be the guardian of your minor children.
- How your property will be distributed, even if it is just a few pieces of jewelry, furniture, art, etc. When you actually do an inventory of all of your property, you may be surprised at what it is all worth.
- Clear up confusion about your wishes, so that your surviving family members are not under pressure to try to figure out what you would have wanted, or don't get into a fight about it.
- Make sure that your property or money goes to the people you want to have it.
2. How Does This Law Office Function?
One of the most important aspects of engaging a law office to create your estate plan is having confidence that that office is the right one for you. Here are a few questions you can ask about the office itself and how it communicates.
- How much do you charge? Don't be afraid to ask this question near the beginning of the first meeting, or even before that. They should break down their fee structures either by an hourly rate or by flat fee. The flat fee will be tied to each particular piece of estate planning or may cover the entire estate plan. You should have this information going in.
- Does your office specialize in estate work? Another way of asking this question is: What percentage of your business is estate work? The reason you ask these kinds of questions is to make sure the lawyers in the office have enough experience with the probate process to handle every one of your needs. The more experience they have, the better they should be able to deal with your personal situation.
One factor that may affect this topic is the size of both the law firm and the city the firm is in. In smaller cities and towns, lawyers often have a general practice that involves many different areas of the law. One lawyer or firm could practice domestic relations law, estate law, criminal law, etc. The larger the city, the more specialized a lawyer usually is. Ask how many estates the firm has done in the last five years to get a feel for how much expertise they have.
3. Lawyer-Client Communications
The most important part of your relationship with your lawyer is the process of communication that is set up between you and the lawyer's office. Know what that is before you leave the law office after the first meeting. Here are some questions to ask:
How often will you communicate with me after the papers are signed? A law firm that specializes in estate planning will often charge an optional, small ongoing fee to contact you every 6-12 months to both keep you updated on changes to probate and estate law that may affect you, and also to check in to see if your situation has changed in ways that may affect your estate plan. It is a good idea to do this. Smaller/solo law firms may have a difficult time doing this, so take that into consideration.
Who else do I communicate with in the firm other than my lawyer? There may be situations where you will not be able to get hold of your attorney (if she is on vacation, retires, dies, etc.). The firm should have a communication protocol that includes other attorneys, administrative assistants, paralegals, secretaries, etc.
How do you communicate with my financial and other advisors? More complex estate plans are a team effort among a set of advisors, and formal lines of communication need to be set up among all of those people before the estate plan is drawn up. The lawyer will always want the final say, but it will ultimately be up to you to make decisions.
4. Questions About Property Distribution
Much of your estate plan will distribute your property to your beneficiaries. Here are some basic questions to ask about that property distribution.
What happens to jointly-owned property?
Many people own property jointly with another person or other people. These joint property situations usually arise when you own property or have accounts with your spouse or other family members. Common examples of joint property include homes, businesses, investment properties, cars, and bank accounts.
For the most part, ownership documents will determine what happens to the decedent's share of that property after death. The decedent can transfer ownership interests through the will if that part of the property is owned by that decedent, subject to several potential encumbrances. These encumbrances include liens on that property, as well as “Payable on Death" and “Transfer on Death" restrictions.
A lawyer can look at all of those documents and determine how those ownership interests should be transferred after death.
Should I have a revocable living trust?
A living trust, if properly constructed, is a way to avoid probate court or probating the estate when you die. This is opposed to a will, which is probated, even if there is no taxation or it is a zero-asset estate.
A living trust transfers ownership of your property into a trust which you control. It is a complex part of estate planning which may or may not be in the best interests of you or your beneficiaries, and should be a topic of conversation with your lawyer.
5. What do I have to know about estate taxes?
The question of estate taxes hinges on where you live and how much your estate is worth. Your attorney and financial advisors will give you the right tax advice.
Federal Estate Taxes
Unless you are a wealthy person, you really do not have to worry about estate taxes. There are no federal estate taxes on estates worth less than $11.2 million until 2026, when the threshold decreases to $5.6 million. If you have that kind of money, you probably have financial advisors who can guide you through the intricacies of federal estate taxation. If not, you should find one.
State Estate and Inheritance Taxes
Seventeen states and the District of Columbia have estate or inheritance taxes (or both). If you live in one of these jurisdictions, you will need to talk about these taxes with your attorney.
A part of estate planning can include giving parts of the estate to a beneficiary before you die. If you do this to avoid probate, you may run into gift taxes. Gift taxes may have to be paid by the giver. They are not paid by the receiver of the gift.
The federal gift tax exclusion amount is $15,000 per year. This means that you can give anybody a gift worth up to that amount each year with no federal tax consequences. Any more than that, and you are required to pay a gift tax.
Only a few states levy a gift tax. Ask your lawyer if you live in one of them.
More Questions? A Lawyer Can Help
Estate planning can be a very complex topic. Except for just writing a simple will, it requires the guidance, input, and professional skills of an estate-planning attorney and other financial professionals. The more complex the estate, the more you will need the help of these professionals.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Complex estate planning situations usually require a lawyer
- A lawyer can reduce the chances of a family dispute
- You can always have an attorney review your forms
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.