Estate Planning Questions To Ask

Communicate with your attorney to give you confidence in your estate plan

Person going over documents with a client
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Your estate plan explains how your assets are disbursed after your death. It also may prompt you to consider some pretty unsettling topics, such as what happens to your minor children if you pass away or who makes medical and financial decisions for you if you are unable to do so.   

Tackling your estate plan begins with hiring the right attorney, and this guide is here to help you do just that.

Key Takeaways

  • Estate planning determines what happens to your assets after your death and who makes financial and medical decisions for you if you are incapacitated. 
  • Estate planning also includes preserving and protecting assets.
  • Finding the right attorney requires understanding their professional experience and the estate planning process.
  • When choosing an attorney, rely on positive reviews, recommendations from people you trust, and your instincts.
  • Ask questions about the details of your estate plan, including how your assets will pass, and how to provide for minor children.

Questions To Ask About Your Estate Planner

While it’s important to put together an estate plan that works for you, it’s equally important to select a professional who will work with you to help set it up. Here are some questions to ask during your search for an estate planning attorney that can prove useful in finding someone who’s the right fit for you and offer some clarity about the estate planning process itself.

1. How Long Have You Been Practicing Estate Planning? 

Choosing an attorney with an established estate planning practice is important because while any attorney may draft estate planning documents and oversee their execution, not all attorneys are familiar with estate planning and may not know all the formalities required for proper execution. An attorney who primarily works in another field of law is likely not the best choice to handle complex matters included in more sophisticated estate plans, like trusts and tax planning.

Think of it like this: If you’re having trouble with your eyes, you’ll probably be better off seeing an eye doctor rather than a cardiologist. Both are doctors, both experts in their own fields, but there’s only one that better fits your needs.

2.  Who Executes My Estate Plan?

While paralegals and legal assistants may be competent to assist in the preparation of basic documents, you want your attorney to have the primary role in drafting your estate plan.  Thorough estate planning attorneys will take the lead in drafting your documents.

Also, you may feel more comfortable if you understand the execution process: where it happens, which documents need to be signed before witnesses, who will be witnessing them, and what happens to the documents after execution. 

3. How Often Should I Review My Plan?

You should review your documents roughly every five years or after every major life event (such as marriage, divorce, birth or adoption of a child, death of a beneficiary, or significant change in financial status) to determine if any updates are needed. Typically, estate planning attorneys do not review your plan unless they have been retained to periodically review your documents after execution or if you specifically sought out the attorney for this purpose. 

4. Do You Handle Probate?

While any probate attorney can work with your executor to offer your will for probate, working with the attorney-draftsperson can streamline the process for your loved ones. This attorney is familiar with the language in your will and the witnesses who executed it. They also may be storing the original documents, which need to be submitted to the Surrogate’s Court. 

A Surrogate’s Court or a probate court handles matters pertaining to wills, guardianship and assets of deceased persons in its jurisdiction, which is usually the county. 

5. What Are Your Fees?

An attorney should tell you upfront what you can expect to pay. Many attorneys charge a flat rate for estate planning services. A flat fee usually includes informational meetings or discussions and then drafting and overseeing the execution of the documents. The attorney should tell you what documents and services are included in their fee. 

It would not be unreasonable for an attorney to bill hourly if the estate plan is particularly complex and the attorney cannot reasonably estimate how much time will be needed to see the estate plan through. 

6. How Long Does It Take To Set Up an Estate Plan?

It is important to manage expectations with your attorney. Having an accurate timetable of when you can expect to see drafts of your documents and when you can expect to execute them will help keep the attorney on track to meet your anticipated timeline.

Questions To Ask About Your Estate Plan

After choosing an attorney, it’s time to focus on the documents that will comprise your estate plan. Asking your estate planning attorney the following questions may lead you to also ask yourself some important questions:

7. Do I Need a Trust?

Estate planning should not only address how your assets pass after you die, it should also minimize taxes owed, where applicable, and preserve your hard-earned wealth and assets.  Estate planning attorneys use trusts (along with several other tools) to help clients plan for future care and Medicaid eligibility while also preserving assets. 

Trusts are a wonderful estate planning tool, but require management and oversight. Your living trust is funded while you’re alive and you can choose to outsource the management to professionals if minimal oversight is your preference; corporate fiduciaries make sense for your specific trust assets. 

Given that responsibility, funding a living trust is advisable if you are looking for certain benefits such as avoiding probate (or ancillary probate if you own property in multiple states), providing funds you currently have for a known disabled beneficiary, tax planning, and planning for the possibility of needing Medicaid in the future. 

If you are 65 years of age and older or suffer from a chronic illness, ask yourself, “Should I be concerned about qualifying for Medicaid?” With the cost of long-term care rising year after year, every client should be considering how Medicaid planning fits into their long term estate plan.

If your goal is to add a level of control and restriction over assets that might be inherited by a beneficiary, a testamentary trust (created by language in your will) is a powerful tool.  A testamentary trust is created after you die, after the probate of your will, and if the conditions described in your will are met. 

For example, if your unexpected or untimely death causes minors to inherit assets.  Hopefully this never happens, but if it does, you are prepared. If the criteria set out in the testamentary trust language is not met (in this case your death before your beneficiaries reach a certain age), then your beneficiary will inherit the assets outright and you save the time and expense of creating an unnecessary trust.

8. How Will My Estate and Beneficiaries Be Taxed?

Estate tax is owed by the estate, inheritance tax is owed by the individual who inherits the assets. For individuals who die in 2022, the IRS poses no federal estate tax on estates smaller than $12.06 million, and this exemption can be doubled for the surviving spouse of a married couple. 

There is no federal inheritance tax. Some states impose their own estate tax and a few impose an inheritance tax. The state(s) where probate is filed and where assets are located will determine which state’s rules apply and your attorney can help you determine what taxes may be owed. Beneficiaries should also be prepared for the estate to pay any ordinary transfer fees and taxes associated with the transfer of real estate.

Assets that do not pass through probate (such as those that pass to your heirs during your lifetime) are still includable in your taxable estate and their values should be included in any calculations to determine estate tax owed.

9. What Protections Do I Need for Minor and Young Adult Children?

Including a living or testamentary trust in your estate plan provides financial protection for your children. Your attorney will work with you to craft the language of your trust, giving specific attention to your wishes as to how trust assets may be used. 

Trust language will typically allow you to name a trustee, who can use trust assets to provide for the health, education, maintenance, and support of your children and can give the trustee discretion to use trust funds for any other purpose you allow. Your trust will also designate the age your children must reach to receive any lump sum allocated to them.

Additionally, your attorney will ask you to designate an individual (or couple) to serve as the legal guardian of your children and their property. You should also include a successor guardian to serve in the event your first choice is unwilling, unable, or unavailable.

10. Are All My Assets Accounted For in the Plan?

At some point during the estate planning process, you should make a list of all your assets.  Your will is responsible only for assets that pass through probate, which is the legal process used for the validation of wills, payment to creditors, and distributions of assets to beneficiaries according to the terms of the will. 

In order to be sure your plan accounts for all your assets, you will want to let your attorney know about assets you own that do not go through probate. Non-probate assets include assets that are held in a trust that was created and funded during your lifetime, ownership in real property with survivorship rights, and any account or policies with beneficiaries (i.e., life insurance, retirement accounts, annuities, etc.).     

Once your estate plan is complete and you have determined which assets are exempt from probate, you must make sure all your beneficiary designations are up to date. If you have beneficiaries for whom you have created a living or testamentary trust, you must change the beneficiary designation to be the trustee of that trust, otherwise you risk these assets being payable to the beneficiaries outright.

11. Who Will Make Decisions for Me if I No Longer Can?

A comprehensive estate plan will designate agents to serve on your behalf by way of a health care proxy and power of attorney. Your health care proxy agent is responsible for making health care decisions should you become incapacitated. They are expected to act in accordance with your wishes as set forth in a living will, if you executed one

Your power of attorney will name an agent to manage your day to day financial and legal affairs. This agent can also be given the power to manage any business owned by you and take the necessary steps to make you Medicaid eligible if ever needed.  

Your attorney can help you evaluate if there are any unique circumstances that need attention with respect to appointing these agents.

Given the powerful and significant roles your agents hold, choose agents that you trust, and also name a successor for each role in the event that the primary person is unwilling, unable, or unavailable to fill the role.

Find the Right Estate Planning Attorney for You

An internet search will return unlimited options, which might make finding the right estate planning attorney feel like an impossible task. Rely on positive reviews and word-of-mouth recommendations to find an attorney that is the right fit. 

Most of all, be certain to find an attorney who makes you feel heard and addresses your concerns. Our gut feelings are often the best judge of character, and talking about these difficult decisions with someone who makes you feel comfortable ensures your estate plan will reflect your wishes and address the foreseeable issues you or your loved ones may encounter in the future.

Frequently Asked Questions (FAQs)

What documents does an estate plan consist of?

The typical documents of the most basic estate plan are a last will and testament, health care directives that include a health care proxy and a living will, and a power of attorney. But depending on where you are in life and how you wish for your assets to be distributed, your estate plan can be much more in-depth than those four documents. It may also include trusts, HIPAA authorizations, business succession plans, and an appointment of agent to control disposition of remains.

Who needs estate planning?

Estate planning is important for anyone who has any assets or minor or young-adult children.  Furthermore, estate planning allows you to plan for future incapacity and medical decision making. Documents like power of attorney can also be important for spouses and partners, business owners, those who travel, and young adults who significantly rely on their parents.

What does estate planning involve?

Estate planning is a way for you to prepare your finances and some legal affairs in case of your death or inability to make those decisions down the line. Naturally, it’s a detailed process. You can expect that proper planning involves a thorough review of your total estate, anticipating future financial and healthcare challenges, and then meeting with an attorney to tie it all together for you based on your wishes for your estate plan.

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Article Sources

  1. Cornell Law School Legal Information Institute. “Surrogate Court.”

  2. American Bar Association. “Rule 1.5: Fees Client Lawyer Relationship.”

  3. IRS. “Estate Tax.”