Chapter 12 - Probate and Estate Planning

Like real estate, these can often be a stress-free pleasure. Most matters do not involve litigation and disputes. They are transactional in nature even though you might need to appear in court. It is hard to build a practice which solely relies on probate and estate planning. Many lawyers would love to do just that.

Included in probate are: probate (of course), determinations of heirship and guardianships. Some states, if not all, even have various non-court and streamlined court proceedings on settling estates. For example, to chain title to real estate from an intestate decedent to his heirs, Texas allows the filing of an affidavit of heirship among the real property records. This rule is found in, among all places, the Property Code. So beware, as stated above, you have to be a jack of all the trades before you can master any one of them.

As regards estate planning, this typically includes a relatively simple will, a durable power of attorney for financial matters, a power of attorney for health care and a physician's directive (living will, or "pull the plug" order). Clients do need these from time to time. It is refreshing when they do. The work is easy and non-controversial. The matter is open and shut typically within the same day (except for the meeting to get the client to come in and sign and pay).

In the days of old, back when the federal estate tax kicked in at $600,000 in 1993, estate planning used to be synonymous with "tax avoidance." Now that the exemption is $10 million for a married couple, there are not many people in the nation who need to worry about federal estate taxation. Thus, the practice of estate tax avoidance has dwindled away (though some states have a state-version of the estate tax which might be helping to keep tax planning aspects alive and well).

Nonetheless, stick with the meat and do not worry much about the gravy. The vast majority of people simply will not have a large enough estate to give rise to estate tax concerns. The odds are that you will never have even one person this rich sit before you as a prospective estate planning client. So, why waste time learning it? Your clients just need simple planning devices to make sure their wishes are carried out in an orderly manner. There are some challenges sometimes when it comes to proper estate planning, so while this area of practice is pleasurable, it is not always dull.

For example, consider this: A decedent had you prepare his will providing, "I leave my real estate to my daughter, Jane, and my Merrill Lynch account to my step-son, Joe. The rest and residue, I leave to Jane and Joe in equal shares." Let us say the rest and residue is not worth much - basically pots, pans and furniture. Now, suppose that, before he died, the decedent sold his real estate and placed the proceeds in his Merrill Lynch account. Ouch!!!! You can look the law up for yourself with your new subscription to your research provider of choice. These are things you must consider when you are helping people plan their estates. So, yes, it is nice to be able to confidently know about issues like these when you are helping people plan their affairs. It is good for you, and it makes your client more confident in your commanding ability to spot and deal with issues.

Today, basic estate planning which you can still use and readily market has to do with setting up testamentary trusts, setting up certain assets to avoid probate and that sort of thing. Plain Jane powers of attorney and directives to physicians are routinely part of a package. These are extremely basic instruments. If you plan to prepare wills and you did not take, or pay attention to, estate planning in law school, the law school textbooks are very good for grabbing the basic concepts surrounding wills and intestacy. The textbook written by Prof. Stanley Johansen of the University of Texas was really quite good. You just need to know some basic issues that arise, such as testamentary capacity, undue influence, formal requisites of wills, pretermitted children, class gifting, lapse, anti-lapse and such. These are basic concepts.

Though it is a concern in all practices areas, it is especially the case with estate planning that lawyers are always trying to peddle more complexity and more product than the client needs. Do not do this. Tell your clients many lawyers would do this, but you are honest, and you are going to be straight with them. You appreciate their business and want them to appreciate you and refer their friends. For example, how many lawyers are peddling health care powers of attorney which name their spouses as attorneys-in-fact? This is the default rule by statute when there is no health care power of attorney. Do not oversell. Respect your clients, and they will respect you back. This will garner you five extra estate plans for the one health care power of attorney you did not overreach to sell. Make a point of showing your clients how you are on the up-and-up when you could have abused them easily. Do not get too righteous and teary-eyed about it, though.


2015, Jeff M