Estate Planning Lessons: Picking the Right Attorney

Like with most everything, estate planning is never as easy as it may seem. The hardest part is scheduling the appointment to talk with an attorney about the type of plan you need. We all think we have plenty of time. This gives us the impression that you can make that call “tomorrow.” For those that have made that call and put your last will or revocable trust in place, I say, “Kudos! You are pretty great, and in some elite company!” (Less than 30% of Americans have any form of estate plan – Only 26% of Americans Have an Estate Plan | ThinkAdvisor… Though 100% of us will need one!)

Planning Tip: Once your plan is in place, I advise all of my clients to have your plan reviewed every three (3) years. Life and law do change, so making sure your plan works the way you intend, when it is needed, is critical.

Estate planning is more than just document preparation. More than just a last will. More than just a revocable trust or power of attorney. Estate planning is the creation of a relationship with your estate planning attorney so that you get good advice now and that your family has a place to turn later, when that unfortunate time occurs. Picking the right attorney is as important as getting your plan in place.

Planning Tip: When you look to engage an attorney to advise you on your estate planning matters, it is important to ask (and understand) if estate planning is that attorney’s focus. When an attorney focuses on one area of law, it enables the best possible outcome for you and your family.

One of the best ways to learn is to listen to the lessons from our courts. On May 20, 2024, the Court of Appeals of Indiana issued a memorandum decision in the case Earlene Blair, et al. v. William L. Goss (Memorandum Decision 23A-ES-2246, May 20, 2024). You can read the entire case here: Supervised Estate: Earlene Blair, et al. v. William L. Goss :: 2024 :: Indiana Court of Appeals Decisions :: Indiana Case Law :: Indiana Law :: US Law :: Justia.

There are several lessons in this case that we can learn from. First, fully funding your revocable trust is critical to avoiding ‘fights’. Second, regular reviews with your estate planning attorney can help ensure the plan works the way you want and need. Third, communication is essential. And finally, fourth, having an attorney who focuses their practice on estate planning can help navigate through these, and other, issues.

Lesson One – Fully fund your revocable trust.

One primary way to prepare an estate plan is with a revocable living trust. The main objective of this type of plan is to avoid probate court when you die. This is achieved by retitling all ownership in your assets (house, bank accounts, brokerage accounts…) from your name into your trust name.

In this case, Florence Hays created a revocable trust in 2008. She then funded her home into the trust in 2019, by preparing and recording a deed. However, though the trust was funded, it was not fully funded. We know this because when she died, her executor had to open a probate. Had her trust been fully funded, no probate would have needed to be opened.

The unfortunate part of opening a probate in this case was that Ms. Hays’ siblings contested it. Had the trust been fully funded, the probate would not have been opened, and the administration (i.e. passing Ms. Hays’ assets to the people she had wanted) would have been much more seamless.

Lesson Two – Regular Reviews with your attorney are important.

As mentioned, Ms. Hays put her trust in place in 2008. Eleven years later, she moved her house into the trust. In most instances, the catalyst for taking this action is a meeting with your estate planning attorney. I would not advise waiting eleven years between meetings, but at least there was follow-up and a major asset was properly funded into her trust.

At these periodic reviews (every three years, or if there is a life event like a birth, death, marriage, or divorce), your plan would be reviewed so you will know who your decision makers are, who you have to receive your assets, and that your assets are funded into your trust. If the house that Ms. Hays funded to her trust was a recent purchase, the estate plan review did exactly what we would have hoped – a major asset was acquired and needs to be brought into her plan.

Lesson Three – Communication is key.

Every family is different; thus, the amount and type of communication will vary. The question that I always get is ‘what should I tell my family?” The best answer is to tell them (in particular the person you named to be in charge) that you have a plan in place, where to find the documents, and how to contact the attorney that assisted you. For many of my clients, we would hold a “family meeting” at my office – so that each person hears the same thing (what is shared in these meetings will vary depending on the particular situation and family dynamics).

In this case, it seems that Ms. Hays had told her siblings about a last will that differs from the pour-over will that ended up in probate. Assuming that is the case, Ms. Hays made one if not two mistakes in her communication. The first mistake was telling her siblings details of her plan. This is a mistake because estate plans are changeable (also called revocable). When we tell someone the details, and then later on change those details, it creates a divergence in expectancy which can lead to confusion and lawsuits (as the siblings challenged the will submitted to probate court). The second mistake was not updating her siblings after she had previously revealed details of her plan. Once she updated her plans, knowing that she previously shared the original plans with her siblings, she should have brought them up to date.

Planning Tip: Your attorney should help you determine the proper level of communication for you. Part of the planning process is listening and learning about your particular situation and family to guide your communication decisions.

Lesson Four – Select an attorney who focuses on Estate Planning.

There are good plumbers, and bad plumbers… There are good mechanic and bad mechanics… Then there are good attorneys, and great attorneys… The point is that not everyone within the profession is at the same level. One thing that truly differentiates law is that each area is complicated, and ever changing (either by court interpretation or new laws being enacted). You want to work with an attorney who keeps current on the impacts of these changes. A good attorney can truly only do this by concentrating on one area of law.  To help ensure you will get the best advice and guidance possible, select an estate planning attorney – not merely an attorney who says he does estate planning.

In this case, Ms. Hays’ siblings’ appellate attorney did not follow the proper appellate procedures. I don’t know how much their attorneys work in appellate law, but the Court found their handling of the case so poor that the Court made the siblings pay for the estate’s attorney fees. The siblings not only lost the appeal, but it cost them two sets of attorneys’ fees!

Planning Tip: There is so much information (and misinformation) available that it makes it hard to know exactly what practice area an attorney focuses on. So, you should simply ask. My clients ask me about other areas of law, so I politely say “no, I can’t advise in that area, but I can see if I find someone who does.”

Jim Plitz is an estate planning and business succession planning attorney with the law firm Waters, Tyler, Hofmann & Scott, LLC. Jim is licensed in Indiana, Kentucky, New Mexico, and Arizona. He can be reached at EstateLaw@WTHSLaw.com or 812-949-1114