Using an Estate Planning Attorney: The Basics
Estate planning is the process of deciding what should be done with your various properties and assets upon your death. This can often be complicated and emotional, but it's also better than leaving your loved ones to navigate a challenging probate process through the legal system.
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, draft estate planning documents, and can assist you in the many complicated matters that arise as you go about the tricky business of settling your affairs.
There are estate attorneys in your area ready to answer your questions and guide you through these challenges. But which questions should you ask? Before you start reaching out to estate planning attorneys, let FindLaw fill you in on exactly what these legal practitioners can do for you.
- Estate planning is a process where you decide what should be done with your properties and assets when you die.
- These specialized attorneys can draft estate planning documents such as wills and trusts and guide you in designating your beneficiaries.
- Estate attorneys also provide legal advice on complicated issues such as powers of attorney and the probate process.
- Estate attorney costs are affected by various factors, including the attorney's professional experience, the prestige of their firm, and the needs of your particular estate.
How Can an Estate Planning Lawyer Help You?
With so many different facets to estate planning, it gets difficult to pin down the many ways estate attorneys can be helpful. For starters, they're just like any other attorney in that they need to be licensed through a state bar association. However, firms and attorneys that specialize in estate planning have years of dedicated experience to draw from. What follows are some areas where estate planning attorneys are handy.
Drafting Estate Planning Documents
Estate attorneys are highly skilled in putting pen to paper and drafting legal documents that convey your wishes. Here are some documents they can prepare and what those documents can do:
- Last will and testament: This legally binding document identifies who you want to inherit your property and assets after you pass away.
- Living will: This document does not distribute property. Instead, it informs those around you about your medical decisions and the type of care you want if you are suffering from a debilitating injury or illness.
- Power of attorney: This document designates an agent that will make important decisions on your behalf. A "durable power of attorney" gives someone authority to make financial or health care decisions for you, even if you are incapacitated. 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.
Designating Beneficiaries and Transferring Property
A designated beneficiary is someone you've selected to receive your assets or property when you die. Estate planning attorneys can help you as you decide who should get what. Your estate attorney can assist not only in identifying all of your property and assets but can help you determine your beneficiaries as well. Sometimes this is as simple as dividing up assets among loved ones. Other times, it can be more complicated and involve complex business or personal decisions.
Upon your death, your estate's executor oversees the transfer of your property and assets to your intended beneficiaries. Your attorney can be the executor of your estate, though this is not required. Ideally, it would help if you choose someone trustworthy and aware of your intentions. But take caution: it is unethical for an attorney to pressure you into selecting them as the executor of your estate.
Minimizing Estate Tax
Taxation is another area where having an experienced estate attorney can be hugely beneficial.
There is a federal estate tax ranging from 18% to 40%, but it only applies to estates that total over $11.7 million. However, 16 states and Washington, D.C., also have estate or inheritance taxes of their own. A local attorney can help you navigate these uncharted waters and provide legal advice that complies with your local laws and governance.
Establishing Legal Guardianship of Minor Children
It is vital for parents of minor children to include information about childcare wishes in their will. Estate planning lawyers understand the many factors to consider regarding child custody. Furthermore, experienced lawyers have drafted guardianship information in past wills and understand how to write yours in a way that conforms to your local court system.
Avoiding Probate Court
Probate court is the court that settles any debt and property issues of a deceased person. It can be a time-consuming, public, and expensive process, which is why estate lawyers advise their clients on best practices for avoiding or minimizing the amount of their property that will end up in probate court.
An estate lawyer will help you plan your estate in a manner that keeps 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 personal and financial situation and cater to what's best for you.
Should your will be contested after you die, the probate or estate lawyer you enlisted to settle your affairs will have everything documented and can guide your family through the next steps.
What Makes an Effective Estate Attorney?
When shopping for an estate planning lawyer, there are some key things to look for to ensure you're hiring a knowledgeable and effective practitioner. You don't want to end up 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 they say anything other than "estate planning," this might not be the lawyer for you. Some general practitioners make estate planning their primary emphasis, but don't be afraid to ask follow-up questions and clarify how this attorney can best serve you.
- What is the full range of your services? This is where you drill down whether this attorney has the skills to assist you. Suppose you are wondering whether your total assets meet the estate tax threshold. In that situation, an estate attorney versed in federal and local tax law would be best. Additionally, 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 how long they've been working in this space. For a complicated estate, you're better off with an attorney with a lot of experience. Sometimes it can be more affordable to go with a less experienced attorney. If they work at a reputable firm, they will likely still have a lot of institutional knowledge and experience to draw from. It all depends on the complexity of your needs and your comfort level with the lawyer.
- How much do your services cost? Go with an attorney that can tend to your estate at a price you can afford. Attorney fees depend on various factors that are affected by your local area, the experience of your attorney, and the prestige of the firm. It's also affected by the services you need and the amount of assets you own.
- Do you or your firm perform reviews of the estate? Estate reviews are a wise choice for people who regularly grow their assets or anticipate 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 and further avoid probate court. Note that these reviews will come at additional costs.
Listen carefully to the estate attorney's answers and determine if they're a fit for your needs. Perhaps they're not experienced enough for you or deal primarily with a different facet of estate planning than what you're looking for. Find a lawyer that listens to you and addresses your concerns.
Using an Estate Planning Attorney: The Basics
It can be hard to think about death or possibly becoming very sick or incapacitated, but preparing for these events can greatly help your loved ones.
Planning for these types of situations is known as estate planning. Estate planning involves handling important financial and medical affairs, so it can be a good idea to work with an estate planning attorney.
An estate planning attorney can ensure that you get the best results with your estate planning and administration.
Step 1: Hiring an Estate Planning Attorney
Estate planning can be overwhelming and sometimes complicated. Consulting and working with an estate planning attorney can help ensure that your healthcare and final property distribution are preserved and carried out according to your wishes.
You can "shop around" for the right attorney for you. Compare pricing, approaches, availability, etc. Some attorneys work directly with you, while other attorneys might direct you to others on their team. Ask questions about the cost and fees and how they accept payment. Many offer a free first phone call to discuss your needs.
Step 2: Preparing to Meet with An Estate Planning Attorney
Preparing yourself before meeting with an estate planning attorney will allow the attorney to do the best job possible and save you time and money. An attorney will need detailed information about:
- You and your family
- Assets you wish to pass on
- Estate planning goals
- Marital status
- Whether or not you have children
- 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.
An attorney will then discuss the options available to you. They will work closely with you toward an estate planning solution that is right for you. You need to consider your assets, final health care wishes, and steps you can take now to save your estate and your loved one's taxes and other expenses.
Step 3: Ongoing Work On Your Estate Plan
After your first meeting with your attorney, you will consult and work closely with them until the forms are complete. This is a key step in ensuring that your final property distribution and healthcare wishes are preserved and carried out.
Your attorney will prepare and execute all necessary documents such as wills, living trusts, testamentary trusts, and powers of attorney. They will explain how to sign or notarize the documents to make them legal.
Step 4: Keep Documents Updated
Don't forget that they may need changes once the documents are created. Major life changes, like marriages, adoptions, births, deaths, or illness may warrant changes to your estate planning documents.
Finding Your Estate Planning Attorney
To find skilled legal help with your estate plan, use the FindLaw Lawyer Directory to search for a law firm or attorney near you. Go to the "Find a Lawyer" box near the upper left corner of this page, and enter your city or zip code. You can also find an experienced estate planning attorney near you.
You can also consider a DIY estate plan if you have a simple estate. You can complete these forms from home using a guided online process and can have an attorney review them afterward if you choose.
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.