Posts tagged gifts
What is it like to work with an estate planning lawyer? (Step 2)

So you've had an initial conversation with an estate planning lawyer and you've exchanged communications. The time has now arrived for you to have a more extended meeting to discuss the finer points of your estate plan. Don't worry! If you and your lawyer have done the necessary homework, this last step won't be difficult.

Presence of Family

For this extended meeting, it may be a good idea to bring along key family members who may be involved in your estate plan. For example, if you've named a family member to serve as your successor Trustee or your Executor. It is by no means necessary, and some people elect not to do that so that they can maintain privacy.

The only instance where you should bring a family member (if at all possible), is if you're married or in a registered domestic partnership. Your spouse and/or partner is more than likely going to be an integral part of your estate plan--indeed, you and your spouse/partner will likely have a joint living trust, so they would be a client too!

If your family comes along or if a family member introduced you to the estate planning lawyer, the lawyer will be diligent about making sure that you are not being coerced into making an estate plan that benefits the other family members. The estate planning lawyer will also check to make sure that you understand the nature of your requests and that you have the mental capacity to instruct the lawyer on creating an estate plan. The lawyer's ultimate obligation is to the client, which means that he or she will act in your best interest.

Details of the Discussion

At the meeting, the lawyer will try to get a sense for some or all of the following:

  1. The nature of your relationship with the people you want to include in your estate plan.
  2. What your particular needs or concerns are.
  3. Any specific health care or medical needs you or a family member may have.
  4. If you own a business, whether you've established a plan for succession or whether there's any "going concern" value (aka, is the business worth something if you aren't working in it?).
  5. Whether you want to donate to charities.
  6. How you want to structure gifts to beneficiaries who are minor or suffering from incapacity or other conditions, which makes an outright gift infeasible.

Remember that your estate planning lawyer is ultimately translating your wishes into legal format, so you should feel open and tell the lawyer what you are thinking. Keep in mind that an estate planning lawyer has likely worked with many clients who are facing similar decisions to you, and can often help you see the potential obstacles in how you want to structure your estate plan. In fact, this is one of the best values of having a live lawyer help. 

How do I maintain control over property I give away?

A basic function of estate planning is to make sure the people or organizations that you want to receive your property actually receives it, but have you really thought about how that would work? Would you just give a lump sum to your teenage son or daughter? If you left money for a charity, how would you know they are using it in the way that you want? What if a person you wanted to leave something to passed away before you--who would get it then? If you have a business, will your partners buy you out? Or, will your family join the business and work in it?

Some Basic Techniques

As a general rule, I think the "KISS" method works quite well in estate planning. (KISS = "Keep It Simple, Stupid") The more complications that get introduced to a distribution scheme, often the more failure points you may be introducing. That being said, there are some basic, tried and true techniques that work and are often good to implement. Here are some of them:

  1. Leaving gifts to a young beneficiary in a trust that call for distributions at various ages. Or, if the amounts are rather small, utilizing "CUTMA" to hold the property for the beneficiary until he or she reaches a certain age.
  2. Utilizing a marital trust to hold property for your spouse to give him or her lifetime enjoyment of those assets, but also ensure that specified beneficiaries (often children) will receive whatever is leftover.
  3. Providing that where a named beneficiary fails to outlive you, the property going to that person will get distributed among his descendants. This is a commonly used provision where you want to benefit not just the beneficiary you've named, but also that person's family.

If you engage an estate planning lawyer, you will undoubtedly face one or more of these concepts depending on your situation (e.g., whether you are in a relationship or have children).