This week, I encountered a disheartening case. An elderly couple scheduled an appointment to review their estate planning documents. Typically, these cases involve clients who have completed their estate plan years earlier and would like it reviewed to see if it needs updating. But in this case, the couple had just completed an estate plan with another attorney a few weeks earlier. After the clients reviewed the proposed documents, they noticed multiple errors. The errors went beyond mere typographical or spelling errors. Given the magnitude of mistakes, the clients wanted a second opinion– in short, the clients had lost confidence in their attorney.
In meeting with the clients, we discussed the clients’ goals and learned that the prior estate plan had even more mistakes than originally discovered. The documents did not distribute the estate according to the clients’ wishes and would have awarded one beneficiary up to four times more than was intended. Further, the prior attorney did not discuss the foreign assets the couple had, or the specific estate planning issues that can arise when a person has assets located out of state or in another country. Finally, the attorney had inserted language into the will that was not requested or discussed with the clients. Fortunately for these clients, they caught the mistakes before it was too late. Often, however, the mistakes are not noticed or corrected until after the client passes away or loses capacity—making it nearly impossible to amend the documents without court intervention.
In my later interactions with the clients, we discussed choosing the right attorney. The clients shared with me they felt uneasy with their prior law firm from the very beginning. In their first meeting, the clients were assigned to meet with the paralegal, and not an attorney, to conduct their initial consultation. The clients felt their case was not important to the firm, and that the attorney was not giving them due attention. They told me they wished they had trusted their instincts and left the law firm for good after the first meeting.
To any potential clients contemplating hiring an attorney to assist them with their legal issues, here are a few tips in helping to choose the right attorney for you:
- Trust your instincts. If you feel something is not right, speak up or find a new attorney. If your first meeting is not with an attorney, discover why and when the attorney will become involved. Most attorneys will conduct the initial planning meetings with their clients. They may introduce you to the paralegal who will be assisting them, but ultimately, the estate plan should be crafted by an attorney experienced in that area of law or who is working closely with an experienced attorney. If you feel your attorney is acting in an unethical manner, contact the Michigan State Bar.
- Set realistic expectations. Mistakes are bound to happen. Spelling or typographical errors can happen when there are multiple documents, multiple beneficiaries, multiple fiduciaries, and multiple sets of information for each person. Your attorney should always provide you with a copy of your estate planning documents to review prior to signing, so you may double check for errors in spelling, addresses, phone numbers, and dates of birth. If there are errors, your attorney should promptly correct the errors prior to signing. More significant errors, such as not distributing the assets in a manner you would like, should raise a flag that perhaps you may want another set of eyes to look over the documents before signing or discuss your estate plan more fully with your attorney to be sure your needs are met. Your attorney should respond to you within a reasonable time if you have questions. Set realistic expectations regarding response times as well—perhaps your attorney is in a big trial or on a vacation. If there is not a reasonable explanation for a long delay in replying (many days or weeks), follow up to make sure you have the proper phone number, email address, or other contact information. For urgent matters, it is always wise to let your attorney know of the urgency in the subject line of the email and follow-up by calling the office and letting the office know of the urgency. Be sure that it is an urgent matter requiring your attorney’s immediate attention, as building trust between you and the attorney is important for the relationship to succeed.
- Find an attorney who specializes in estate planning or elder law. In this fast-paced world, it is easy to be enticed by the idea of simply downloading form documents off the internet or hiring your cousin who does immigration law to review your estate planning documents. However, I have encountered numerous “pre-printed” forms that were not executed properly, did not achieve the clients’ wishes, or did not meet the proper legal requirements. Sadly, many mistakes were not discovered until it was to late to do anything about it. I have also had to help families “undo” mistakes made by well-meaning attorney family members or friends who drafted legal documents outside their area of specialty. As with medical profession, you would not want your general practitioner to perform open-heart surgery—the same is true with the legal profession. Simply having a law degree differs from practicing law in the specialty of estate planning, probate, and trust matters. Having someone knowledgeable in the area is important to achieving your goals and can save you thousands, if not hundreds of thousands of dollars in the end.
- Ask questions and disclose everything. Ask all the questions you feel you must ask before signing anything. Fully understand what you are signing. By the time you leave your meeting or meetings with your attorney, you understand
- How and why to avoid probate (in most situations)
- The difference between a will and a trust
- What is a fiduciary and what responsibilities does a fiduciary have
- The differences between a medical and financial power of attorney
- What is a lady-bird deed? How does it work? Should you have one?
- How your proposed estate plan will help you achieve your goals
- Answers to any specialized circumstances such as care for elderly or disabled loved ones, expected inheritances, planning for minors, planning for retirement assets, planning for non-citizens, planning for foreign assets, and the like.
Finally, be sure you disclose everything to your attorney. A proper estate plan requires full disclosure of your assets and liabilities, so your attorney can help plan for any potential problems, concerns, tax consequences, and other issues that may arise.