{Read in 6 Minutes} As a Trusts and Estates attorney, I frequently write estate plans for people. This often includes a whole series of documents such as a Will, Power of Attorney, Health Care Proxy, Living Will, sometimes a Funeral Directive, and even other documents.
I serve clients from all walks of life. Some have significant assets, while others have very modest assets. Some are parents of young children who want to ensure their children don’t inherit money before they reach an appropriate age. Or perhaps they have people in their life who are disabled and receiving needs-based government entitlements. Some are charitably inclined, and some are concerned about ensuring that someone cares for their surviving pets. These are all things that an attorney will discuss with you during your appointments.
Similarly, some people who come to see me have existing Wills or a series of them that they’ve done over the years, and some of them are writing a Will for the very first time. In either situation, they might appreciate a list or a reminder of what they should do to make this discussion more fruitful. Here is what I suggest that prospective estate-planning clients bring to our discussion:
1. A List of Assets
Incident to your estate plan, you and your attorney will discuss your assets. This happens for a few reasons. First, it shows that you have the testamentary capacity to sign a Will because you can demonstrate an awareness of the nature and extent of your assets. Second, if you are a wealthier person, this will help your attorney discuss whether your estate is likely to face an estate tax. And finally, it will also show whether the disposition of your assets is controlled by your Will or by an existing beneficiary designation form. Your attorney isn’t going to ask for things like account numbers or the exact amount of dollars and cents in any given account. However, they will likely ask you to list them, provide their approximate values and let them know if they are held individually, are a joint account, or if they already name an existing beneficiary.
2. Genealogical Information
Your attorney is going to ask you about your family tree. This is important for a few reasons. First, knowing the nature and extent of your assets, knowing “the natural objects of one’s bounty,” is also an element of testamentary capacity. Second, it’s important to understand who would inherit if you died without a Will. This is important because if the people that you want to inherit are the same people who would inherit, even if you didn’t write the Will at all, you might not even need to pay an attorney to write a Will. Also, it’s important to understand who the people are with standing to challenge the Will. If your Executor is going to face probate litigation, that might include depositions, motions, or even a trial. You must take steps to prepare for that in advance to put your Executor and beneficiaries in the best possible situation.
3. Your Wishes Concerning the Disposition of Your Remains
I talk about dead bodies a lot. Like, a LOT!! It’s not uncommon in a Will to address what you would like to have happen to your remains. This may be essential if you plan to address it in your Will, which a lot of people like to do for various reasons.
4. Who Gets What?
Big surprise, your attorney’s going to ask you who you would like to inherit your assets. Having some idea of this beforehand would be helpful. Most attorneys (myself included) will produce a draft of a document before you sign it. But if you have this information at the initial meeting, you can see it in the draft — thus making the draft a much more fulfilling document.
Warning: a lawyer will also take you down what we jokingly call the “parade of horribles.” Specifically, the lawyer will ask who should inherit your assets if your spouse dies before you, or if your kids die before you, or your parents or any other people who are the ones you love most in the world. No, lawyers are not sadistic (or at least we’re not being sadistic in this instance). We’re trying to create a practical plan so that your Will addresses what happens if one of these horrible things comes to pass, so you don’t need to run in and redraft your Will if you lose someone important to you.
5. Who’s in Charge (During Your Life and After Death?)
A good estate plan appoints a bunch of people who all fulfill certain tasks. For example, your Executor is in charge of handling the administration of your Estate and offering your Will for probate in the Surrogate’s Court. Having an agent under a Power of Attorney or Health Care Proxy allows one to help you with financial or medical decision-making during your lifetime. Giving some thought to who these people might be before the meeting could be helpful. Similarly, if you are a parent with minor children, you might have to select Trustees for their Trusts, and even a Guardian until they are 18.
Finally, don’t be alarmed if you don’t have answers to all these questions yet. Just because you’re going to discuss them with your lawyer does not necessarily mean that you need to have firm conclusions. Drafts are just that — drafts. Lawyers can put blank lines in drafts, and sometimes that is helpful to clients when deciding how to craft their planning. The more prepared you are for a meeting, even if you only have part of this list complete, the more you’re likely to take away from it.
Finally, don’t be afraid to ask your lawyer about costs. I don’t know why, but for some reason, people are often shy about asking lawyers how much they can expect to pay in legal fees. This is something you’re paying for, just like you would ask how much a new outfit, car repairs, or a vacation would cost before you pull the trigger on the purchase. An estate plan is the same thing. Most Trusts and Estates attorneys do this on a flat fee basis, and you should ask how much it’s going to cost during the consultation. You can ask beforehand if you’d like, and the lawyer can often give you a range, but until the lawyer knows exactly what you’re asking the lawyer to draft, it’s hard for them to quote an exact price.
For more information on this topic, please contact me.