This article is more about our firm than the usual post because it pertains to our unique approach to estate planning and involves the question of what is estate planning. We’ve come a long way as a “beautique” Florida estate planning law firm. Our practice began with “yours truly”, as a young Florida estate lawyer with a desire to establish a “client centered” asset protection oriented estate planning law firm. Over time, this practice has evolved to include a substantial emphasis in Florida elder law planning, as well as asset protection law, real estate and business succession legal planning.
This year will mark our 8 year anniversary and today we are a full service estate planning and elder law practice, with offices in Florida and California, and a legal team committed to client centered legal services. Many of our loyal readers benefit from weekly observations in our various areas of expertise gleaned from real life every day experiences.
While many of our readers are clients, a good portion are other professionals, friends and potential clients who’ve found us on the web by searching for information about an important concern. For those of you who haven’t been afforded our client experience or our estate planning process, this article is to provide an overview and insight into our unique client process and what should be included in an effective estate planning process in general.
What is 360 Degree Estate Planning?
Offering An Effective Estate Planning Law Practice Is All About Establishing An Accommodating Relationship With Clients, Maintaining An Accommodating Process For Gathering Information, And Thereafter Creating Documents That Establish A Comfort Level For Clients By Maximizing The Means To Accomplish the Client’s Desired Estate Planning Outcome.
Estate Planning Is First About Establishing Trust
In today’s world, people are highly cautious when it comes to divulging personal and family information, and this caution is probably warranted in world of identity theft and the widespread misuse of personal information. Also, I’m not happy to say that lawyers are not high on the list of the most trusted professions. The “rub” is that to do proper estate planning, trust is essential in order to be sure that the estate lawyer has the needed information to properly advise the client and arrive at the appropriate set of estate planning options. Unfortunately, many adopt the “no plan” estate plan out of apprehension to divulge personal information. The unfortunate results of having no estate plan were vividly demonstrated concerning the estate of pop music icon Prince.
So, what do we do to establish trust? This is tricky question because most people tend to have an intrinsic idea of whether they can trust someone. Part of our initial process is to assure people that we are bound by duties of confidentiality in all of our discussions. Although this offers some reassurance, this simple reminder isn’t always that effective. What is more effective is looking people in the eye and assuring them that we exist to further their estate planning goals and serve this function only. Also, the longer we do what what do, and the more we contribute to this profession through education and other client support actions, the more people tend to believe that we are what we say we are. We do adhere to a strict confidentiality policy and are very wary of, for example, family members who call to ask about a parent’s estate plan. The most effective way, of course, to establish trust is through a process of getting acquainted with the client and his/her values, goals and challenges, and offering effective insights. From this experience, clients discover that helping them face these critical planning questions is truly our passion and commitment as a Florida estate planning team and this establishes an accountable relationship.
Estate Planning Is About Listening and Gathering The Necessary Information
Once trust is established, one might think it isn’t too difficult to gather the necessary information needed in order to make an estate planning recommendation. However, this would be an oversimplified perspective. Often, I’ve discovered that it is what isn’t shared that could be the most important part of the estate planning process, and this is why it is important to ask the right questions and to have the intuition that only comes with experience when engaging in initial client discussions. Remember, the goal of the initial client interview is to identify the client’s deepest values and concerns prior to making the necessary recommendations. It is also very common that the client doesn’t know what is important to share, so some digging is often necessary to extract the necessary facts and feelings from the client. Key issues often arise when digging a bit deeper during client interviews. For example, the need to care for an aging parent or prevent an irresponsible adult child from inheriting a lump sum are common key aspects of a plan.
Of course, gathering the appropriate financial and asset information and the knowledge of how these assets impact the planning options is also critical. For example, if investment real estate assets are concerned, then the use of LLCs and proper rental agreements may be needed. If business ownership is involved, then business succession planning and an exit strategy should be recommended.
Estate Planning is About Educating The Client To Empower Them To Make Their Own Decisions
Estate planning is an area where the average person has very little knowledge and there are a few key reasons for this scenario. First, when dealing with matters of mortality, many people would rather avoid it and “avert” to focus on something easier like financial planning, sports or hobbies. Second, most of the concepts and documents involved in estate planning are not encountered very often, apart from experiencing the death of a loved one, and thus, the subject matter is often entirely foreign. Of course, we live in a time where information is literally a click away at our fingertips. The problem is that a person who researches on line really doesn’t know who to believe and because this information is so foreign, there is no way to know whether the internet advice given is legitimate or “off center” for that individual’s particular needs. This is why we are so committed to educating clients as to the recommendations that are offered at the start of planning, as well as educating clients throughout the process of completing the documents, offering insight during the signing of the documents, and partnering thereafter to maintain a current estate plan.
Estate Planning is About Presenting a Series of Understandable Options
Over the years, we’ve found that it is easy to over complicate the set of options that are available to the clients and this can lead to what I like to call a “client shut down”. I usually identify this by the “glazed” look in the clients eyes and a general lack of response to further questions. A good example of providing an easy to understand set of options is as follows.
Basic Living Trust Planning involves a fairly simple Revocable Living Trust document that is designed to help the estate avoid the probate process and distribute the assets outright to beneficiaries. A more Comprehensive Trust Plan would involve keeping assets in Trust for the beneficiaries and this can afford asset protection and other long term planning benefits for the Trust beneficiaries such as special needs planning. The key is that simplifying the language used to describe the available options, and their benefits, allows the client to get comfortable with the options and make a clear decision. In my opinion, the rest is just window dressing for the lawyers and judges anyway.
Estate Planning Process Is About Creating Estate Documents that Accomplish the Client’s Desired Outcome
It has been all too common, in my experience, to see legal documents that were created primarily by the lawyer because the lawyer thought that this is the way that things needed to be, rather than as a result of deep discussions with the client about his/her values and objectives. For example, it is a common practice to have the revocable living trust distribute the assets directly to beneficiaries “outright and free of trust” perhaps without having considered whether any of the beneficiaries are dealing with disabilities or receive “need based” social security disability benefits (SSI). In these kinds of circumstances, it is so important to utilize special needs trust planning, and this is just one example of how asking deep questions and gaining a clear understanding is so important before preparing the appropriate legal documents. Other examples of appropriately addressing the client’s goals are including provisions that prohibit the withdrawal of Trust principal prior to attaining certain ages specified by the client.
Proper Execution Of Documents
Whether the estate planning documents, and particularly the Florida Last Will & Testament, were properly executed is the subject of much lore in the world of estate and probate litigation. An essential concept to the world of “testamentary documents” is the question of whether the signor had the “capacity” to sign the documents. Essential to the question of capacity is whether the signor was competent and had a full understanding of what he or she was doing. Of course, the competency question also goes back to a great education process and the presentation of options, and now you’re likely beginning to see how all of this knits together. So, the law’s way of assuring capacity and competency is to require that “testamentary documents” are also signed by witnesses. Notarization or “swearing an oath” to the authenticity of the documents is also generally required depending upon the State laws. For these reasons, our process has been refined over many years to assure that the client not only fully understands the contents and purposes of his/her documents, but also demonstrates this appropriately by observing the formalities for testamentary documents during the process of putting pen to paper.
Capacity, competency, witnesses, notary, identification, family understanding are all critical to the execution of estate documents.
Maintenance and Follow Up
In life, things change as our families grow and as aging occurs. With these natural processes, the key components of an estate plan can expand or change in emphasis. Likewise, estates change as new assets are acquired or if a “spend down” is occurring. Planning for estate taxes and yes, long term medical care, is also a part of a change in priorities that can occur over the life of the client. As new assets are acquired and old ones are sold, it is important to make sure that the “titling” is properly directed at the Family Trust.
For all of these reasons, it is necessary to monitor your Florida estate plan with regular checkups in order to assure that key changes are addressed in a timely manner and that nothing is left to chance.
I hope that this comprehensive overview gives you a much clearer picture of what needs to occur in a great estate planning process, and also demonstrates our commitment as a legal team to you, as our valued clients and partners.
Steve Gibbs, Esq.
This is an update to a post originally dated June 9, 2016.