Using an Estate Planning Attorney: The Basics
Estate planning is deciding what happens to your assets upon your death. This process can be complicated and emotional. But it's better than leaving your loved ones to navigate a challenging probate process.
No one understands the many nuances of this legal area better than an estate planning lawyer. Estate attorneys provide legal advice on federal and state law. They also draft estate planning documents and can assist in matters that arise as you settle your affairs.
Estate attorneys in your area are ready to answer questions and guide you through these challenges. But which questions should you ask? Before you contact an estate planning attorney, let FindLaw explain what they can do for you.
- Estate planning is a process to determine how to distribute your properties and assets.
- These specialized attorneys can draft estate planning documents such as wills and trusts.
- Estate planning attorneys guide you in designating your beneficiaries.
- Estate attorneys provide legal advice on complicated issues such as powers of attorney and the probate process.
- Various factors influence estate attorney costs. These factors include the attorney's professional experience, their firm's prestige, and your particular estate's needs.
How Can an Estate Planning Lawyer Help You?
With so many different facets to estate planning, explaining how estate attorneys can be helpful briefly is difficult. For starters, estate planning attorneys must be licensed in the state where they practice. Estate planning lawyers draw from years of dedicated experience in estate planning. Estate planning attorneys assist individuals and families in the following ways.
Drafting Estate Planning Documents
Estate attorneys are highly skilled in drafting legal documents that convey your wishes. Estate planning attorneys commonly work on the following legal documents.
- Last will and testament: This legally binding document identifies who you want to inherit your property (personal property and real estate) and assets.
- Living will: This document does not distribute property. It is a type of health care directive that informs those around you about your medical decisions and the care if you suffer from a debilitating illness. You can describe your treatment preferences when you can't speak for yourself in end-of-life situations.
- Power of attorney: This document designates an agent to make critical decisions on your behalf. A "durable power of attorney" gives someone authority to make financial or health care decisions for you in the event of incapacity or in situations where you declare the power of attorney effective. There are several types of powers of attorney depending on your legal needs.
- Trust: A trust document designates a person (a trustee) of your choosing who will hold your property or assets for the benefit of others, typically referred to as beneficiaries. Trusts can work in place of or as a supplement to a will. There are different types of trusts depending on your legal needs. For example, a revocable living trust is created and funded during your lifetime, and you keep the power to amend or revoke.
Designating Beneficiaries and Transferring Property
When you die, a designated beneficiary is someone you've selected to receive your assets or property. Estate planning attorneys can assist with your designations. Your estate attorney can help identify all your property and assets and help you determine your beneficiaries.
Sometimes this process is as simple as dividing up assets among family members and loved ones. Other times, it can be more complicated and involve complex business or personal decisions.
You can transfer assets directly to family members and loved ones with a beneficiary designation. You can transfer assets directly to family members and loved ones with a beneficiary designation. You must follow the instructions for completing the form provided by the financial company holding the asset. Beneficiary designations are commonly used for:
- Life insurance policies
- Retirement plans
- Brokerage accounts
Beneficiary designations are often made when an account is established. But they can be updated at any time and should be reviewed regularly. Upon your death, your estate's executor oversees the transfer of your assets to your intended beneficiaries.
Minimizing Estate Tax
Tax planning is another area where having an experienced estate attorney is critical. State and federal estate tax will not be an issue in every estate. But, where it is, tax planning becomes one of the attorney's most critical tasks during the estate planning process.
There is a federal estate tax ranging from 18% to 40%, but it only applies to estates that total over $12.060 million. But several states and Washington, D.C., also have estate or inheritance taxes of their own. A local attorney can provide legal advice specific to your jurisdiction.
Establishing Legal Guardianship of Minor Children
Parents of minor children must include their childcare wishes for a legal guardian in their will. Estate planning lawyers understand the many factors to consider in child custody. But they can help you find an attorney specializing in family law if necessary.
Experienced lawyers have drafted guardianship information in past wills and understand how to write yours in a way that conforms to your local requirements. Further, if you have a child with special needs, your estate planning attorney can provide legal advice about your options. These can include a special needs trust or other revocable living trusts. Your attorney will explain the trust administration process, and you can determine whether it is right for your situation.
Avoiding Probate Court
Probate court is the court that settles the decedent's debt and property issues. It can be a time-consuming, public, and expensive process. Estate lawyers advise their clients on best practices for minimizing property subject to probate court proceedings.
An estate lawyer will help you plan your estate to keep as much of your property as possible out of probate court. This sometimes involves storing assets in a living trust or giving assets to beneficiaries as gifts under the Unified Gift and Estate Tax.
A skilled attorney will assess your situation to make recommendations tailored to you. Should a will become contested after a decedent's death, the probate or estate lawyer can help. They will have everything documented and can guide your family through the process.
What Makes an Effective Estate Attorney?
When shopping for an estate planning lawyer, there are key characteristics to look for to ensure you're hiring a knowledgeable and effective practitioner. You want to avoid paying expensive legal fees to someone unsuited for the needs of your particular estate.
Consider asking the following questions in your initial consultation:
- What is your primary area of emphasis? If the attorney says anything other than "estate planning," this might not be the lawyer for you. Some general practitioners make estate planning their primary practice area.
- What is the full range of your services? This is where you determine whether this attorney has the skills to assist you. Do your total assets meet the estate tax threshold? What assets are included in the calculation to decide whether you meet the threshold? An estate attorney versed in federal and local tax law would be best for such situations. Some estate lawyers will only draw up an estate plan, while others will execute that plan when you die.
- How long have you and your firm been in business? Ask about your attorney's background and experience. You're better off with an attorney with extensive experience in a complicated estate. But sometimes, it can be more affordable to hire a less experienced attorney. If they work at a reputable firm, they will likely have enough access to knowledge to serve your interests. So don't count out an attorney with less experience so long as they are at a firm with the resources to support your particular matter. It all depends on the complexity of your needs and your comfort level with the lawyer.
- How much do your services cost? Attorney fees depend on factors affected by your local area, your attorney's experience, and the firm's prestige. It's also affected by the relative complexity of your estate planning needs. The complexity of your estate is largely driven by the types and assets you own and the value of your estate. For example, suppose you are a twice-married business owner with minor children from both marriages. Your estate will be more complex than a widow with adult children from a single union.
- Do you or your firm perform reviews of the estate? Estate reviews are a wise choice for people who regularly grow their assets or expect a life change, such as a move or a divorce. Periodic reviews scheduled annually or bi-annually are a great way to stay on top of your affairs. Regular reviews ensure your existing plan works with your current life situation. Staying abreast of how personal life changes impact your estate plan can ensure you do what you can to avoid meeting your estate planning goals. This may include avoiding probate court. These reviews typically add costs.
Listen carefully to the estate attorney's answers and determine if they fit your needs. Determine whether you generally feel comfortable with the attorney. The attorney's communication skills are of utmost importance. It would be best if you try to find a lawyer that listens to you and addresses your concerns in a way you can understand.
Discussing personal family details with your estate attorney as your fiduciary will be critical. So, you must be able to communicate with the attorney you select effectively. They will work with other professionals on your team, such as accountants and financial advisors, to ensure you have a complete plan.
Using an Estate Planning Attorney: The Basics
It can be difficult to think about death or incapacity, but preparing for these events benefits you and your loved ones. Planning for these types of situations is known as estate planning. Estate planning involves handling important financial and medical affairs. An estate planning attorney can ensure you get the best results with your estate planning and any estate administration or probate process.
Step 1: Hiring an Estate Planning Attorney
Estate planning can be overwhelming and sometimes complicated. Consulting an estate planning attorney can help ensure your healthcare decisions and final property distribution are carried out according to your wishes. Many offer a free first phone call to discuss your needs. Don't hesitate to shop around for the right attorney until you find the one that best meets your needs. It's best to hire an attorney based on skill and experience, personal recommendations, your comfort level with the attorney, and any cost considerations.
Step 2: Preparing to Meet with an Estate Planning Attorney
It's wise to prepare yourself before meeting with an estate planning attorney. It will allow the attorney to do the best job possible and save you time and money. An attorney will need detailed information about the following:
- You and your family
- Assets and debts
- Estate planning goals
- Marital status
- Family composition, i.e., whether you have children, grandchildren, etc.
- The state of your financial affairs
- Real and personal property
- The potential needs of your loved ones in your absence
- Any major medical diagnosis
- Your final healthcare wishes
Of course, the more detailed the information you provide to your attorney, the better they can help you with your estate planning needs. Often, an estate planning attorney will provide you with a detailed questionnaire for you to complete. Taking the time to complete this document will only make the process more seamless for all parties involved.
Following your initial meetings, an attorney will discuss your options. They will work closely with you toward an estate planning solution that is right for you. You must consider your assets, final health care wishes, and steps to maximize the assets distributed to your loved ones and minimize taxes and other expenses.
Step 3: Ongoing Work on Your Estate Plan
Following the initial meeting with your attorney, you will work closely with them until you complete the legal documents in your estate plan.
Your attorney will prepare and assist with the execution of all necessary documents, such as wills, living trusts, testamentary trusts, and powers of attorney. They will explain the formalities to ensure the documents meet all legal requirements of each legal document. These formalities include having the correct number of witnesses and notarizing certain documents.
Step 4: Keep Documents Updated
Once you complete your estate planning documents, you should periodically review them. Significant life changes, such as marriages, divorces, adoptions, births, deaths, or illness, may warrant changes to your estate planning documents.
Finding Your Estate Planning Attorney
To find legal help with your estate plan, use the FindLaw Lawyer Directory to search for a law firm or an attorney near you. Go to the "Find a Lawyer" box and enter your city or zip code. You can also search specifically for an experienced estate planning attorney near you.
You can also consider a DIY estate plan if you have a simple estate. You can complete your documents through a guided online process. Even if you use legal forms, you can still have an attorney review the legal documents afterward.
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.