5 Questions To Ask Before Hiring An Estate Planning Lawyer—Part 1 | Cava & Faulkner

Since you’ll be discussing topics like death, incapacity, and other frightening life events, hiring an estate planning lawyer may feel intimidating or morbid. But it doesn’t have to be that way.

Instead, it can be the most empowering decision you ever make for yourself and your loved ones. The key to transforming the experience of hiring a lawyer from one that you dread into one that empowers you is to educate yourself first. This is the person who is going to be there for your family when you can’t be, so you want to really understand who the lawyer is as a human, not just an attorney. Of course, you’ll also want to find out the kind of services the lawyer offers and how they run their business.

To gather this information and get a better feel for who the individual is at the human level, we suggest you ask the prospective lawyer five key questions. Last week in part one https://www.calilaw.com/5-questions-to-ask-before-hiring-an-estate-planning-lawyer-part-1/, we listed the first two of these questions, and here, we cover the final three.

  1. How will you proactively communicate with me on an ongoing basis?

The sad truth is most lawyers do a terrible job of staying in regular communication with their clients. Unfortunately, most lawyers don’t have their business systems set up for ongoing, proactive communication, and they don’t have the time to really get to know you or your family.

If you work with a lawyer who doesn’t have systems in place to keep your plan updated, ensure your assets are owned in the right way (throughout your life), and communicate with you regularly, your estate plan may be worth little more than one you could create for yourself online—and it’s likely to fail when your family needs it most.

Think of it this way: Yes, your estate plan is a set of documents. But more importantly, it’s who and what your family will turn to when something happens to you. You want to work with a lawyer who has systems in place to keep your documents up to date and to ensure your assets are owned in the right way throughout your lifetime. Ideally, the lawyer should get to know you and your family over time, so when something happens, your lawyer can be there for the people you love, and there will already be an underlying relationship and trust.

  1. Can I call about any legal problem I have, or just about matters within your specialty?

Given the complexity of today’s legal world, lawyers must have specialized training in one or more specific practice areas, such as divorce, bankruptcy, wills and trusts, personal injury, business, criminal matters, or employment law. You definitely do NOT want to work with a lawyer who professes to be an expert in whatever random legal issue walks through the door.

That said, you do want your personal lawyer to have broad enough expertise that you can consult with him or her about all sorts of different legal and financial issues that may come up in your life—and trust he or she will be able to offer you sound guidance. Moreover, while your lawyer may not be able to advise you on all legal matters, he or she should at least be able to refer to you to another trusted professional who can help you.

Trust me, you wouldn’t want the lawyer who designed your estate plan to also handle your personal injury claim, settle a dispute with your employee, and advise you on your divorce. But you do want him or her to be there to hear your story, refer you to a highly qualified lawyer who specializes in that area, and overall, serve as your go-to legal consultant.

  1. What happens if you die or retire?

This is a critically important—and often overlooked—question to ask not only your lawyer, but any service professional before beginning a relationship. Sure, it may be uncomfortable to ask, but a truly excellent, client-centered professional will have a plan in place to ensure their clients are taken care of no matter what happens to the individual lawyer managing your plan.

Look for a lawyer who has their own detailed plan in place that will ensure that someone warm and caring will take over your planning without any interruption of service. If your lawyer prepared a will, trust, and other estate planning documents for you, or if you are in the middle of a divorce or lawsuit, you want to make certain your lawyer has such a contingency plan in place, so you won’t be forced to start over from scratch should your lawyer die, retire, or become otherwise unavailable.

Writing a Will: Avoid these 8 mistakes while writing a will to ensure your assets are passed onto your heirs

 

A will is one of the most basic estate planning tools. While relying solely on a will is not a suitable option for most people, just about every estate plan includes this key document in one form or another.

A will is used to designate how you want your assets distributed to your surviving loved ones upon your death. If you die without a will, state law governs how your assets are distributed, which may or may not be in line with your wishes.

That said, not all assets can (or should) be included in your will. For this reason, it’s important to understand which assets you should put in your will and which assets you should include in other planning documents like trusts.

While you should always consult with an experienced planning professional when creating your will, here are a few of the different types of assets that should not be included in your will.

      1. Assets with a right of survivorship: A will only covers assets solely owned in your name. Therefore, property held in joint tenancy, tenancy by the entirety, and community property with the right of survivorship, bypass your will. These types of assets                 automatically pass to the surviving co-owner(s) when you die, so leaving your share to someone else in your will would have no effect. If you want someone other than your co-owner to receive your share of the asset upon your death, you will need to change             title to the asset as part of your estate planning process.

  1. Assets held in a trust: Assets held by a trust automatically pass to the named beneficiary upon your death or incapacity and cannot be passed through your will. This includes assets held by both revocable “living” trusts and irrevocable trusts.In contrast, assets included in a will must first pass through the court process known as probate before they can be transferred to the intended beneficiaries. To avoid the time, expense, and potential conflict associated with probate, trusts are typically a more effective way to pass assets to your loved ones compared to wills.

However, because it can be difficult to transfer all of your assets into a trust before your death, even if your plan includes a trust, you’ll still need to create what’s known as a “pour-over” will. With a pour-over will in place, all assets not held by the trust upon your death are transferred, or “poured,” into your trust through the probate process.

 

  1. Assets with a designated beneficiary: Several different types of assets allow you to name a beneficiary to inherit the asset upon your death. In these cases, when you die, the asset passes directly to the individual, organization, or institution you designated as beneficiary, without the need for any additional planning.The following are some of the most common assets with beneficiary designations, and therefore, such assets should not be included in your will:
  • Retirement accounts, IRAs, 401(k)s, and pensions
  • Life insurance or annuity proceeds
  • Payable-on-death bank accounts
  • Transfer-on-death property, such as bonds, stocks, vehicles, and real estate
  1. Certain types of digital assets: Given the unique nature of digital assets, you’ll need to make special plans for your digital assets outside of your will. Indeed, a will may not be the best option for passing certain digital assets to your heirs. And in some cases—including Kindle e-books and iTunes music files—it may not even be legally possible to transfer the asset via a will, because you never actually owned the asset in the first place—you merely owned a license to use it.What’s more, some types of social media, such as Facebook and Instagram, have special functions that allow you to grant certain individuals access and/or control of your account upon your death, so a will wouldn’t be of any use. Always check the terms of service for the company’s specific guidelines for managing your account upon your death.

Regardless of the type of digital asset involved, NEVER include the account numbers, logins, or passwords in your will, which becomes public record upon your death and can be easily read by others. Instead, keep this information in a separate, secure location, and provide your fiduciary with instructions about how to access it.

       5. Your pet and money for its care: Because animals are considered personal property under the law, you cannot name a pet as a beneficiary in your will. If you do, whatever money you leave it would go to your residuary beneficiary (the individual who                   gets everything not specifically left to your other named beneficiaries), who would have no obligation to care for your pet.

It’s also not a good idea to use your will to leave your pet and money for its care to a future caregiver. That’s because the person you name as beneficiary would have no legal obligation to use the funds to care for your pet. In fact, your pet’s new owner could legally keep all of the money and drop off your furry friend at the local shelter.

The best way to ensure your pet gets the love and attention it deserves following your death or incapacity is by creating a pet trust. A good estate planning attorney can help you set up, fund, and maintain such a trust, so your furry family member will be properly cared for when you’re gone.

  1. Money for the care of a person with special needs: There are a number of unique considerations that must be taken into account when planning for the care of an individual with special needs. In fact, you can easily disqualify someone with special needs for much-needed government benefits if you don’t use the proper planning strategies. To this end, a will is not a suitable way to pass on money for the care of a person with special needs.If you want to provide for the care of your child or another loved one with special needs, you must create a special needs trust. Given these are extremely technical, you should always work with an experienced planning lawyer to create a special needs trust.

Don’t take any chances
Although creating a will may seem fairly simple, it’s always best to consult with an experienced planning professional to ensure the document is properly created, executed, and maintained. And as we’ve seen here, there are also many scenarios in which a will won’t be the right planning option, nor would a will keep your family and assets out of court

 

I just boarded a 6:45 am flight to Denver with my family. We were split up. Actually, Yan and Cade were put together. Ella and I were both assigned middle seats, across the aisle from each other in the same row. I guess that’s what I get for buying the budget economy ticket on United. 

It just never would have occurred to me that United would sit a 9-year-old child by herself. I knew we didn’t get guaranteed seats … I didn’t pay the extra $20 per ticket for the privilege of picking my own seats … and now I regret it. 

First, for me, traveling is all about the experience with my family. Even the airplane ride is an important part of that experience. Second, poor Ella, a child had to sit by herself between two strangers. And if that wasn’t enough to make me feel like I totally botched booking the flight, I then have to sit through the safety briefing (which should really be called the disaster seminar). 

I’m being told to secure my own oxygen mask first before assisting my child. United may not have noticed, but that little stretchy hose on the mask isn’t long enough to reach across the aisle. So, I am either unable to assist my child or I cannot remain in my seat to secure my own mask. No good choices you’ve left me, United, but I know which one I’m going to take. Yet I’m very uneasy at the thought of having to make such a choice and I’m rattled at the thought of jumping out of my seat, running across the aisle, and trying to get Ella’s oxygen mask on her in the midst of whatever emergency we find ourselves in, all while trying to hold my breath so I can take care of my daughter before I pass out from lack of oxygen. 

Then the flight attendant gets to the emergency exit part of the briefing which induces a vision of my little girl being trampled and me throwing elbows to try to get to her. But I’m quickly relieved of that imagery as the flight attendant pulls me into the terror that is the inflatable life vest. I’m not even sure I could follow the instructions on how to deploy  (and anything you have to “deploy” is inherently complicated, just saying) the darn thing. Ella’s in real trouble if she must do that for herself … or rely on me to do it for her for that matter. And do they expect me to rely on a stranger to do that for her in the event of a chaotic water landing? C’mon, United.

Ah, but then a moment of relief as I remember the whole thing is a big tease anyway (I saw “Fight Club”). Of course, from that point on I could only think of the plane going down without me even being able to hold my little girl’s hand or provide her any small comfort in our last moments.  And all this would confirm my ultimate failure as a father. Ugh!!

At any rate, that was the demented torture my mind put me through. Perhaps it’s just my innate morbidity as an estate planning attorney – always looking through the lens of “what could go wrong here” – but that was the path my brain took.  

United Airlines, this is not an open letter to call you out – though shame on you for forcing a young child to sit by herself, and for making her parent be apart from his child, and for the hypocrisy of your safety briefing when you separate a parent from his child, and for not making it clear you would separate a parent from his child if he did not pay the extra $20 per seat to choose those seats.

And shame on me for being a cheapskate and allowing my daughter and myself to be put in that position. BUT, there’s also a big business takeaway here for me. I have a large sign in our lobby titled “We believe”. It goes on to list a bunch of beliefs which are part of the culture of my firm, several of which are pertinent here–

“We believe cheap legal services are never a good substitute for value.” United, along with most of the rest of the airline industry, is on a race to the bottom: cutting services, competing to see who can be the cheapest, and losing sight of (or just not caring about) the customer experience. So, I had a negative experience on this flight, and I don’t feel like United particularly cares about me or my family. Substituting cheap service for value created a yucky experience and a negative association with that business. I never want my clients to feel that way.

“We believe nothing is more important than family.” We want our employees to know that. We want our clients to know that. We want to support both our clients and our employees in taking care of their families. We don’t want hypocritical policies or insensitive procedures.  We want everything we say and everything we do stand for and stand by family. 

“We believe being a parent is the most challenging, most rewarding thing in life.” I failed as a father, yet again (but luckily with no dire consequences- we just landed.). But I learned much this morning. Don’t trust every company to do what’s right (especially where your children are concerned). A good company makes it clear what they stand for and makes it a consistent message throughout their interactions with their customers.  Oh, and a dad has to forgive himself over and over again and sometimes thank his child for being brave when things don’t go as planned.

Thank you, Ella.

Thanksgiving, hands down, is my favorite holiday.  Ever since I was a little kid, it’s always centered on three of my favorite things: food, football, and family.  But this year Yan and I put a little twist on things which made it a unique Thanksgiving.  And though it deviated from the “traditional” Thanksgiving I love so much, it was simply my best Thanksgiving ever.

Earlier this year Yan said to me, “I found $400 roundtrip, direct flights to Madrid from LAX; the only catch is, we have to travel during Thanksgiving.” But that also meant Cade and Ella already had a week off from school and quite frankly, when Yan cooks up an adventure, I know it’s going to be awesome – it’s one of the many reasons I married her.  Add to that, what sounded like the deal of the century to visit a country none of had ever experienced before and it was a no-brainer.

So, the four of us flew to Madrid the week before Thanksgiving.  We spent three-and-a-half days walking and eating our way through that amazing city before catching a train to Seville to do the same thing there for another three days.  Then back to Madrid (with a day-trip to Toledo) for our final three days in Spain.  We easily walked 8-10 miles each day, stopped into an equal number of tapas bars each day, and spent every minute of each day being with, connecting with, and enjoying each other.

I learned that my daughter is a traveler in her soul.  Ella’s spirit of adventure and desire to chase experiences fit perfectly with Yan and me and made her a true joy to travel with.

I reconfirmed that my son is quite possibly the most culinarily adventurous kid in America.  There was no Spanish dish he wasn’t up for at least trying, if not devouring, critiquing, and comparing with the other similar dishes we’d tried earlier.  He has an amazing palate and an amazing openness to new gastronomic experiences.

And I rediscovered why my wife is my best friend. She is daring, adventurous, loving, supportive, resilient, and up-for-anything. I can’t imagine a better travel companion, in Europe or life.

So we did not eat Turkey on Thanksgiving, didn’t watch football (no soccer doesn’t count even though the Spaniards call it “football”), and we weren’t with extended family – all things that make me look forward to and relish the Thanksgiving holiday.  It was just us, eating various unfamiliar tapas dishes, talking and laughing and loving being in a new and fantastic country with one another.  I couldn’t have asked for anything more and I’m not sure I’ll ever top it.  But I do have a remarkable wife and kids who live for new adventures … so who knows?

I know why I like Thanksgiving so much – it’s an excuse to focus on what life is really all about anyway.

I hope your Thanksgiving was filled with love and laughter and connectedness to the people most important in your life, too.