The Role of a Texas Estate Planning Attorney in Probate and Estate Planning

When you think of an attorney do you think of that person’s primary responsibility to their client being to educate him or her? I am willing to bet that most people do not think about lawyers as being teachers, as well. However, if a lawyer is doing their job, then I can tell you that the client should be learning a great deal about whatever issue he or she is bringing before the lawyer. A lawyer does not make decisions for a client. Rather, the lawyer, ideally, should be educating the client so that the client can make decisions wisely. An attorney who does not have the heart of a teacher is not doing their job to the fullest.

This brings us to today’s blog post topic. An estate planning attorney helps individuals as you plan for how to best transfer property both during the client’s life and after he or she has passed away. This includes performing actions like drafting wills, trusts, health care directives, power of attorney documents, and other planning documents. The estate planning attorney must be good at asking questions. If an attorney that you are meeting with is not inquisitive and concerned with your current circumstances, goals, and the make-up of your family finances he or she cannot possibly advise you well regarding wealth management and financial planning. Structuring these documents is critical to your success as a client. Without understanding your goals, the attorney is ill-equipped to help you do much of anything related to estate planning.

As we just finished mentioning an estate planning attorney must also excel at being a teacher of the law. No, the lawyer does not need to put you through a law school-style class on estate planning. You do not need to know every single aspect of the law to make good decisions. However, what the attorney should be able to do is educate you on the concepts and ideas that are important to your situation. From there, you can make decisions that are based on the reality of your life and on the situation that you find yourself in. Not only is your current situation important but that of your family is critically important to be able to get the most out of your estate planning sessions with an attorney.

The benefit of an estate planning attorney is that he or she is usually able to consult with you, help you and educate you over an extended period. When it comes to drafting a will or a trust there is not usually any legal deadline or anything like that to be concerned about. You simply want to get your estate planning done but also need to learn as much as you can about the subject before making decisions. This allows the estate planning attorney time to go over the essentials with you in a more leisurely fashion. As opposed to family law, estate planning is a process rather than a deadline-driven area of the law.

What can you expect from an estate planning attorney?

When you hire an estate planning attorney you are doing so to receive assistance and guidance to arrange the most efficient transfer of your property to beneficiaries after you die. There is no sugarcoating this. When you plan for estate-related matters you do so in hopes of making the lives of your loved ones, friends, church, or other organization better. This is something that you will not be seeing any benefit from but your legacy will and the people and things that matter most to you during your life can see a tremendous benefit as a result of your having been generous. Not only generous, but by hiring an experienced family law attorney you will be able to be prepared and be aware of the potential pitfalls and other obstacles that you need to be able to avoid to put yourself in a position to be generous and have a legacy that lives on.

In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss the types of situations and issues that estate planning attorneys handle on behalf of clients and what skills you should be looking for in your attorney. Other issues that are relevant to estate planning as well as topics and useful tidbits of knowledge that can help you better prepare for your estate planning scenarios will also be included. If you have questions about any of this material please reach out to the Law Office of Bryan Fagan for a free-of-charge consultation with one of our licensed and experienced estate planning attorneys.

What does an estate planning attorney do?

Estate planning not only has to do with helping you transfer property and wealth to other people but also with being able to structure assets and efficiently lead your financial life while you are alive. The most requested service that an attorney in the field of estate planning provides for a client is to draft a will. A will is a legal document that you can create which determines who will receive your assets after you die. The people or entities that receive your property are known as beneficiaries. Wills are not only for the rich, contrary to popular belief. All adults can benefit from having a will drafted. Yes- wealthy people often do have wills but everyone else can, just as well. Wills are for the old, the young, the in-between, and all other groups.

The more complex your financial life is the more complex your estate planning documents must be. In situations like this, it is common for a client of an estate planning attorney to ask the lawyer to prepare a series of documents that relate to efficient and economical transfers of their property after he or she passes away. When you think about it, this makes complete sense. Wealthy people have a great deal of skin in the game and want to maximize the fruits of their labor, good fortune, and timely planning. However, even if you are not wealthy it wouldn’t make sense to throw caution to the wind and hope that everything works out for the best after you pass away. Rather, you can and should plan for matters related to your estate.

For those of you who have small or medium-sized estates, the estate planning attorney that you hire probably will need to have the skills necessary to draft a simple will and provide advice to you on how best to structure the ownership of your property to pass it to your children or other beneficiaries in a way that costs the least in taxes and speeds the process up as much as possible. The last thing you want is for taxes to eat away at a significant portion of your estate while it takes many months or even years to effectuate that transfer of property after you pass away. Keep in mind that if you have atypical or unusual family dynamics or other circumstances in play in your life then your will or estate planning generally may be just as complex as a wealthy person who owns a variety of different types of property.

Taxes and their burden on your estate

Estate planning attorneys do not advise clients on how to avoid taxes that they are legally obligated to pay. However, estate planning attorneys can and should counsel their clients on how to legally minimize their tax obligations through deductions, structuring of their transfers, and manner of investment during their lives. Avoiding taxes is one way to ensure that your estate is as intact as possible when it comes time to distribute property to your beneficiaries. It is not a good decision to overlook this reality as you plan estate matters and consider how best to handle your money for those that will come after you.

If you are someone who has a large estate- one worth more than five million dollars- it is a good idea for you to ask the lawyer what sort of experience, he or she has with estate planning for people in your wealth bracket. You can ask the attorney what sort of tax knowledge he or she possesses as well as if he or she has taken any tax courses and what he or she does to stay up to date on the changes to the tax code. It would not be a good thing for an attorney to give you advice based on an area of the tax code that no longer exists or has changed dramatically.

Helping clients create trusts

A trust is an estate planning tool that can be utilized effectively by clients and attorneys no matter the size of the client’s estate. A third party, known as a trustee, will be able to hold assets on behalf of your beneficiaries. There are tax benefits to holding property in a trust as well as benefits as far as helping that property not have to go through the probate process. This can save time and money for your beneficiaries. Trusts can be set up as part of a will (testamentary trust) and independently of a will (such as with revocable or irrevocable trusts).

What will your estate planning attorney do to help your family after you have passed away?

If you hire an estate planning attorney to only help you with the creation of a trust or the drafting of a will, this is known as a limited scope engagement. However, you may want to have the attorney stay on board with you and your family through the time that you pass away and into the probate or asset distribution stage of the estate planning process. In that case, the attorney will be responsible for a handful of things after you have passed away.

If you have a will in place, your estate planning attorney can help the executor of your will begin to organize the property that is to be distributed. The executor of a will is the person that you select who is going to oversee matters related to your estate. This includes distributing property to your beneficiaries but also paying debts first so that the property in your estate remaining can then be distributed freely without being encumbered by creditors. Paying the debts of your estate means notifying any known creditors of your passing and allowing them an opportunity to come forward and collect on their debts.

Keep in mind that even in the most organized and well-thought-out situations it can be tough to divide property among the beneficiaries of your estate. This is an emotional and difficult time for your beneficiaries. On top of losing you, these folks are now having to come face to face with the emotions surrounding receiving your property and doing so in circumstances that are less than ideal. The estate planning attorney that you choose to hire may be able to play a part in this situation to make this distribution process simpler. You can make the process easier by notifying your beneficiaries of the property that they will be receiving- as well as the property that they will not be receiving- before your death. This can take some of the sting out of that process.

What sort of skills should you be looking for in an estate planning attorney?

Estate planning attorneys can and do appear in court (usually family or probate court) but their day is typically spent meeting with clients and drafting documents. There is no “opposing” attorney in many estate planning situations. The drafting of documents wills, trusts, and other estate planning documents is what your estate planning attorney will do with a great deal of their time. You may want to ask the attorney that you are interviewing how he or she begins the process of drafting these documents to get a better idea of their process and how it may differ from other attorneys that you have met with.

In those somewhat rare situations that require litigation to reach a conclusion, estate planning attorneys find themselves handling a contested will in most circumstances. You can ask the attorney that you are meeting with what their level of experience has been in representing clients’ families who see their estate distribution process go awry. Usually, the more property that is at stake, the greater the likelihood that someone would challenge the validity of your will.

Your estate planning attorney needs to be comfortable with interviewing clients as well as investigations related to a client’s financial and estate planning circumstances. The tough part of estate planning interviews is that you probably do not know all the ins and outs of your financial situation so the lawyer that represents you will need to learn those details to best serve you. Being able to ask you questions that provide him or her the information needed to do so is an art learned typically after having years of experience handling estate matters for a variety of different people. A good estate planning attorney will investigate matters further when something does not seem right. Usually, this involves some aspect of your financial life or investments.

Your attorney will also need to work alongside a range of other professionals if you have a large estate. Insurance agents, bank employees, trustees, financial planners, and accountants are just a few of the people that your estate planning attorney may need to work with to best serve you.

If you are a small business owner, then your estate planning attorney should know business to help manage matters related to your business. Beyond how to handle the division of a business after you pass, your attorney needs to understand the tax ramifications associated with business ownership. You may be in a situation where you can restructure ownership of your business in a more tax-advantaged way.

Whatever you choose to do as far as estate planning representation make sure that you meet with multiple attorneys. Different attorneys will give you different advice. Different attorneys will guide you differently with their words and actions. Most importantly- not all attorneys are teachers and can connect with you. There is an attorney-client relationship involved in all of this, after all. Make sure that you go through your options and are diligent about asking questions and learning as much as you can. Once you are comfortable deciding about hiring a lawyer you should know a great deal about how that attorney functions.

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