10 Things Your Estate Planner Won’t Tell You – My View

Click “Continue Reading” for the full text of the article and my responses in italics.  My main message is that if you choose a experienced, qualified and reputable attorney to head up your estate planning team, you will avoid many, if not all, of the problems discussed in the article.

10 Things Your Estate Planner Won’t Tell You

By Michele Marchetti

1. “You probably don’t need me.”

Let’s face it: Estate planning is scary. Not only does it involve protecting your hard-earned assets, but it makes you think about that dreaded topic: death. That’s probably why many of us run to an estate planner when it’s time to write a will.

Not so fast. “The overwhelming majority of estates don’t trigger the federal estate tax,” says Don Roberts, national spokesman for the IRS, adding that you must be worth at least $1 million when you die to pay tax at all. If you fall below that-and don’t have any complicated estate issues-you probably don’t need a lawyer to draw up a will. Instead, you can use a software program, such as Nolo’s Quicken Lawyer Personal Deluxe ($42 at www.nolo.com) and dispense with the whole task in an afternoon.

GHG:  I strongly disagree.  Estate taxes are only one of many considerations in estate planning.  Others include asset protection, special needs family members, income  and capital gains taxes, probate avoidance, and charitable gift planning.  In addition, estate planning involves much more than just preparing a Will.

Web-based or other software program may meet the needs of a small minority of folks, but just about everyone can benefit from a professionally-prepared estate plan.

2. “Estate planning isn’t my thing.”

What does it take to call oneself an estate planner? Not much, it turns out. Some estate planners are financial planners. Others are certified public accountants. Many are lawyers. But none of those titles guarantees an intricate knowledge of estate planning. “If you have a $50 million estate and you ask a lawyer if he does estate planning, the answer you’ll get 100 percent of the time is an enthusiastic ‘Yes, I do,’ ” says Tony Fiorillo, a financial adviser who helps victims of dishonest investment advisers.

Robert N. Sacks, chairman of an American Bar Association estate committee, says you should stick with a lawyer who specializes in estates. The ultimate badge of competency: membership in the American College of Trust and Estate Counsel (ACTEC), an invitation-only national organization. (You can search ACTEC attorneys in your area at www.actec.org.)

GHG:  The only estate planners who can legally prepare estate plans, complete with the documents to effectuate the plan, are attorneys.  Mr. Fiorillo’s comment is a gross exageration – only a small minoirty of attorneys will attempt to take on sophisticated estate planning work without having the requisite knowledge and experience.  In North Carolina and many states, attorneys can be certified as specialists in estate planning.  See www.nclawspecialists.org

3. “I’d love to be your executor.”

Who should execute your will once you’re gone? It’s a tricky question, especially for parents who don’t want to favor one child over another but also don’t want to entrust the job to the son who depleted his 401(k) for a new Miata. In your moment of indecision, you may find your estate planner offering to take the job. The reason? Executors pull in hefty fees. “It guarantees future employment or retirement money,” says Stephen McDaniel, an estate attorney and president of the Estate Law Specialist Board, which accredits estate attorneys. In California, where executor fees are based on the estate’s size, a $1 million estate would pay $21,000 to the executor. Many people give the job to family members, who often refuse payment. A relative stranger probably won’t do the same.

GHG: In North Carolina, attorneys are prohibited from suggesting that they be named as executors. My personal policy is to agree to serve when requested only if there are no reasonable alternatives.  In addition, I generally do not take an executor’s fee for my services – only attorneys fees for the work done.

4. “You don’t need a living trust.”

Living trusts have been a favorite estate planning tool of the past decade, and it’s easy to see why. Living trusts allow your estate to transfer property and assets outside the clunky probate process, saving your heirs time and money. Overzealous planners love them too, since setting one up can boost their bill. “I’ve had several clients who had gone to an estate planner and were pressured into setting up a living trust,” says John Huggard, an estate planner and author of Living Trust, Living Hell: Why You Should Avoid Living Trusts. “It drove the cost of a basic estate plan from $500 to $3,500.”

While the prospect of a long probate can be enough of a deterrent to justify the cost of a living trust, that’s becoming less the case. David Scull, a probate attorney in Bethesda, Md., says that in the past few years many states (including “almost everything west of the Mississippi”) have simplified their probate processes. Two exceptions: If you live in a big city or own property in two states, probates are still tedious. But in most cases, he says, “if the executor is organized, it’s possible to do a $10 million estate in minutes.”

GHG:  While living trusts don’t make sense for everyone, they can often save thousands of dollars and many, many hours of time by avoiding probate.  Mr. Scull’s statements are ludicrous – in most states probate is done in the county courts, and the size of the city you live in has no effect on the probate cost.  Also, even the most experienced executor can’t handle a large estate in a matter of minutes.   Dozens of hours is more accurate, at least in North Carolina, where court accountings are mandatory.

5. “I make more money in insurance than planning your estate.”

John Scherer, a financial planner and former Northwestern Mutual Life insurance agent, met a client last year who needed estate planning. Scherer referred him to an attorney who charged about $7,500 to draft a will. In order to fund his estate tax liability, the same client is considering buying life insurance. Scherer predicts that the commission on such a policy will put about $10,000 in some lucky agent’s pocket.

Given that financial incentive, it’s no wonder so many estate planners have muscled their way into the insurance business, too. Despite the obvious conflict of interest-planners who sell insurance have an incentive to recommend it-it’s gotten a lot easier for planners to do both. That’s because many states have recently rewritten their laws so that CPAs, when doing estate planning, can sell insurance and collect a commission. While it’s required that the financial incentive be disclosed, many planners aren’t doing so. It’s a “huge” problem, says attorney Jay Adkisson, who runs Quatloos.com, a Web site that tracks financial scams. His site has received dozens of e-mails from people complaining that their CPA or attorney pitched life insurance but didn’t mention a commission.

“If someone says, ‘I’m going to help you with estate planning,’ and a product is a central point in the presentation-run, don’t walk,” advises John Olsen, an estate planner in St. Louis.

GHG: The majority of estate planning attorneys do not sell life insurance.  In North Carolina, attorneys are prohibited from selling life insurance, annuities and other financial products to their clients, even with disclosure about the commissions.

6. “My customer service stinks.”

The tax code gets a major revision about every other year, and people’s lives change constantly. Yet some clients are lucky if they hear from their estate planner after the initial meeting. Part of the reason is that many estate planners started practicing years ago, when the idea of actually maintaining a plan was a foreign concept: Back then people changed jobs less often, moved investments less frequently and, frankly, amassed wealth less quickly, says Kathleen O’Blennis, an estate planner with the Castleman Law Firm in Pleasanton, Calif. “But we’re shifting from a mentality in which you signed your will and no one touched it until someone died, to one where planning is an ongoing issue.”

Don’t take it for granted that your planner will hold your hand once your initial plan is in place. O’Blennis has one client who, under a previous planner, sold his home and failed to transfer the new home into the existing trust. O’Blennis salvaged the trust, but it cost the client thousands of dollars. O’Blennis’s advice: “If I were looking for a planner, I’d ask what they’re going to do to help me maintain this thing once the animal is born.”

GHG: I agree that maintaining an estate plan is very important.  However, most of the responsibility lies with the client, who must keep their estate planner informed of significant changes in their situation.  Also, personalized updating has a cost, so the client must be willing to pay for the planner’s time in providing that service.  I have found that many are not willing to do so, but prefer to come back only when they might choose.

7. “Your pushy sister is your problem.”

Sure, estate planning is about money, but it’s also about family. Good luck finding a planner who knows something about both. “[Planners] are so entrenched in the tax game that they forget about how the estate plan will ultimately impact the family after a death,” says Mike Smith, a court-appointed guardian of estate disputes in Gwinnett County, Ga.

This can get really bad when a “family limited partnership” is involved. This estate planning tool lets people slash estate taxes by placing assets into a partnership and giving away interest in that partnership to family members. The tricky part: After the founder dies a general partner is left in charge, while limited partners simply reap the financial benefits-or suffer from the general partner’s decisions. Gerald Le Van, an estate attorney and family-business consultant, has worked on a handful of family limited partnerships that were headed toward litigation because the siblings just couldn’t get along. His advice is to anticipate problems early. Lesson one: “Siblings will take orders from parents, but not from each other.”

GHG: An Estate Planner knowing something about families is primarily a matter of experience and common sense, and shouldn’t require any special training, although a background in psychology or counseling might be helpful..  The planner does need to anticipate potential problems and try to find ways to avoid them, but that generally comes with experience.

8. “I’m in bed with the bank.”

You may not know it, but your planner might have other relationships that could affect your estate. Take the case of management consultant Edmund McCormick. In 1985 he appointed Bankers Trust as corporate fiduciary of his $37 million estate. After his 1988 death, Bankers Trust appointed the law firm White & Case to represent the estate through probate. As it turns out, White & Case is also a Bankers Trust attorney, meaning that the estate had no unbiased legal representation, says Patrick Hanley, spokesman for Edmund McCormick’s widow, Suzanne.

Hanley says that White & Case failed to go after two of the estate’s co-executors who were allegedly involved in the embezzlement of $232,000 from the estate. To him the reason is clear: Such a lawsuit would have been embarrassing for Bankers Trust, which failed to catch the problem early. In 1998 Suzanne McCormick filed objections against the bank with the Surrogate Court in White Plains, N.Y., alleging mismanagement of the estate and breaches of fiduciary duties. To add insult to injury, White & Case was paid $250,000 out of the estate for its services. (White & Case declined to comment, since the matter is in litigation. David Keyko, the lawyer representing Bankers Trust, disputes the claims, saying that White & Case acted without bias. Since the filing, he says, the Surrogate Court has dismissed eight of the 20 or so objections.)

McCormick’s situation isn’t isolated. “The banks and lawyers are having collusive relationships,” says Standish Smith, founder of Heirs, a nonprofit organization in Villanova, Pa., that helps beneficiaries with complaints regarding trusts and estates. “It’s hard to figure out if the lawyer is working for the client or the bank.”

GHG: Although attorneys are required to avoid overt conflicts of interest in representing clients, it is a good idea for clients considering appointing a corporate fiduciary to ask whether the attorney has any formal relationship with the fiduciary.

9. “Tax laws confuse me-a lot.”

After Donald Goddard’s wife died in 2000, he asked Stephanie Rapkin, an attorney in Milwaukee, to update his trust. According to Rapkin, the attorney who originally drafted the papers made an egregious mistake-one so bad that Goddard lost all his tax benefits. “There’s nothing I can do,” says Goddard. Fortunately for him, the estate tax exemption is increasing in 2006 to $2 million, which is right around the value of his estate. “Let’s hope I live to 2006,” he says. Indeed, tax-law screwups are one of the most common causes of estate planning-related malpractice lawsuits, according to Sacks. “Laws are ever changing, and it takes time to keep current.”

GHG:  Again, it is vitally important to ensure that your estate planner has the requisite qualifications and experience.  For attorneys, board certification in estate planning, advanced degrees (LL.M.) in tax or estate planning, and membership in ACTEC (see #2 above) are all objective measures of a certain degree of knowledge.  Ask anyone you are considering hiring to assist you about his or her credentials, or check them out on the web.

10. “Sue me. You’ll never win.”

In Donald Goddard’s case, the mistake his estate planner made was discovered while Goddard was still alive. In most cases, however, your planner’s blunders won’t surface until long after you’re gone. And that can create big problems if your heirs want to sue for malpractice. “The key witness is dead,” says Bruce Ross, an estate and trust trial lawyer in Los Angeles. If a planner makes a mistake but has malpractice insurance, beneficiaries have a shot at getting their due. This is yet another reason to use an estate specialist. “If a lawyer says he’s a specialist, he’s held to a higher standard,” says Ross.

But if you live in New York, Maryland, Ohio, Texas, Colorado, Nebraska or Virginia, cases brought by beneficiaries are nearly impossible to prove. Thanks to an antiquated legal concept called “privity,” heirs in those states can’t go after estate planners. It works like this: If a dealer sells you a bad car and you sell it to your neighbor, the neighbor can’t sue the dealer because he’s one step removed. The same applies to planners, who enter into a contract with their client-not the client’s children. According to Ross, the fact that some states haven’t budged on it has little to do with logic: “It’s just a matter of history.”

GHG: I agree with Mr. Ross – always use a specialist.

Originally published in the April 2001 issue of SmartMoney magazine.