Questions for Your Attorney

The most common question I hear as I speak around the state is, “How do we find the right estate planning attorney to help us?”

There is no simple answer. But knowing what questions to ask will help you find the right professional for your family. Ask these questions before you begin planning. If you’re already started, ask before you continue. Ask now about all three phases of planning!

Phase 1: Plan Creation

“Will you tell me about your interest, background and experience in estate planning for farmers?” There are plenty of attorneys who focus strictly on estate planning, so you don’t need to work with a generalist.

“How do you define estate planning?” Many professionals see estate planning as merely probate and tax avoidance. The right attorney will (of course!) help with that, but will focus on assuring that your personal and family goals are achieved, that relationships are preserved, and that wisdom from the elder generation passes to the younger.

“How do I prepare for our consultation?” Experienced attorneys will have detailed checklists and instructions to prepare you for decisions you’ll need to make. Some offer workshops to educate you on planning opportunities so you can be better prepared before you sit down with their ‘meter running.’

“How will you counsel me in designing my plan?” Many attorneys simply ask a few vague, open-ended questions, and you don’t know what to request. Then they steer you into their favorite one-size-fits-all (which really fits no one well) generic document and a pre-determined, standard result. Other attorneys will invest the effort and time to educate you, offer a wide variety of outcomes, and follow your interests until each decision is tailored to your fully-informed wishes.

“How much will you charge to create the plan?” Remember all three planning phases; don’t just focus on getting a document. Hourly fees will make you hesitant to explore alternatives. An experienced attorney will commit plenty of time to you, and early in the process can quote a set fee for plan; then no-one will nervously watch the clock!

Phase 2: Updating

“How do you assure that my assets follow the instructions we put in my plan, and who is responsible for this?” Mistakes in this area are what cause most wills and trusts to fail to meet the makers’ expectations. Joint ownership will make assets avoid the will or trust. Naming individuals as beneficiaries on life insurance, annuities or retirement accounts cause those dollars to circumvent the plan. Your attorney should review every asset and help you align the ownership (titling) of each asset to follow your plan.

“What about the assets I acquire later?” What you own today is not all you ever will, so how will you assure that future assets are aligned with the plan?

“How do we keep my plan current, and how much will that cost?” Tax laws alone change about every two years; other laws continually evolve. Updating your documents every 5 or 10 years just won’t do! Find an attorney who will systematically update your plan on a predetermined schedule—every year or two is appropriate—for a pre-determined fee. Just like routine maintenance of equipment, it saves money in the long run.

Phase 3: The Estate Transfer Process

“How will you involve my family? Do you educate and prepare them for the transfer of my farm?” In order for your family to stay in control of the process and the costs, they will need to be prepared in advance of your death.

“What’s your track record on avoiding probate?” Living trust attorneys tout these trusts as the way to avoid probate; but many, perhaps most, living trust estate plans don’t! How is this attorney doing?

“How much will you charge my family to carry out the plan at death?” An experienced attorney will give you a firm estimate or at least disclose a fee schedule so your family won’t be at their mercy later on. (Typical will administration fees start at around 1.5% for large estates, growing to 3% on smaller farms; trust administration usually costs about 1/2 to 3/4 as much.)

The right attorney will welcome these questions, and won’t squirm when answering them!

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Article authored by Curt W. Ferguson and originally published in the Prairie Farmer magazine, January 2006 issue