What Lawyers Get Wrong About Their Trusts & Estates Practice: From Will-making to Forging Lasting Relationships
by Tara Faquir and Leah Del Percio On September 14, 2023
In the realm of Trusts & Estates, many lawyers often find themselves navigating the misconception that their primary offering is a tangible product, like wills or trusts. However, at the heart of this practice isn’t a product, but a promise – a commitment to leveraging one’s expertise to solve complex, personal challenges for clients. While testamentary documents play an undeniable role in crafting solutions, they represent just one piece of the puzzle. To truly serve clients and build lasting relationships, attorneys must look beyond paperwork and delve deep into the multifaceted layers of problem-solving.
Understanding the broader scope of a trusts & estates practice is essential to meet the nuanced needs of every client fully. Rather than viewing our role strictly as document drafters, we must recognize the various challenges our clients face and the myriad ways we can assist. Here’s a deeper dive into some often-overlooked aspects of our practice, underscoring the importance of holistic client engagement:
Common misconceptions of trusts and estates attorneys and how these can influence their relationships with clients:
- Emotional Underestimation:
- Planning & Administrative Phases: Estate planning carries deep emotional weight. Focusing solely on technicalities may make clients feel that their personal feelings and anxieties about family, legacy, and mortality are being sidelined.
- Example: A client hesitates to distribute assets equally among their children due to a strained relationship with one of them. By not delving into these feelings, the attorney drafts a standard equal distribution plan.
- Outcome: The client might feel unheard, and the will may exacerbate family tensions.
- Malpractice Risk: If emotional factors are not considered and they lead to the creation of documents that don’t truly reflect the client’s wishes, beneficiaries may claim the attorney did not exercise due care in capturing the decedent’s intent.
- Pro-Planning Tip: When speaking to a client about their family members, be sure to refer to them by their names, rather than relationship. Ex: “Let’s talk about how you want to distribute assets to Todd and Samantha,” rather than “Let’s discuss how you want to distribute assets to your children.” Referring to your clients’ family members by name makes a client feel like they are talking to someone on a more personal level.
- Overemphasis on Testamentary Documents:
- Planning Phase: Attorneys can sometimes place disproportionate emphasis on drafting wills and trusts, seeing them as the entirety of their work product. In doing so, they may underestimate or neglect crucial elements that activate these documents, like trust funding and naming beneficiaries on non-probate assets.
- Administrative Phase: By not providing adequate administrative assistance post-document creation, clients may be left feeling unsupported when it matters most.
- Example: An attorney spends hours perfecting a trust document but fails to educate the client on the nuances of funding it.
- Outcome: The client may end up with a beautifully drafted, yet practically ineffective, trust.
- Malpractice Risk: Solely focusing on drafting without considering broader estate planning aspects might result in an incomplete or ineffective plan, potentially exposing the attorney to claims of negligence.
- Pro-Planning Tip: If you do not offer trust funding in-house, it is important to set trust funding goals for your clients. Trust funding can be an extremely overwhelming process to your client, and because it is unfamiliar to them, they often choose not to do it. Setting up micro-goals for each client will allow them to feel a sense of achievement as they tackle each task. Ex: Create micro-goals for a 30-day timeframe. ‘By Sept. 15, 2023, transfer your two investment accounts into your trust. By Oct. 15, 2023, update the beneficiaries on the life insurance policies to include your trust…etc’ Not only will this allow clients to address trust funding in a manageable way, but it also gives you the opportunity to check in as those deadlines are approaching to see if the tasks have been completed.
- Neglecting Direct Involvement in Trust Funding:
- Planning Phase: If the attorney doesn’t take a hands-on approach to trust funding, clients might feel that their estate planning lacks thoroughness and diligence.
- Administrative Phase: Failing to handle trust funding directly can result in assets falling outside of the trust, creating both administrative complications and emotional distress for the client.
- Example: Instead of taking the responsibility to directly ensure that assets are properly transferred into a trust, an attorney merely provides a brief overview of the process to the client and assumes it will be executed correctly.
- Outcome: Essential assets may remain outside of the trust, which can lead to them being exposed to probate or causing the trust to not function as intended, potentially undermining the client’s goals and trust in the attorney.
- Malpractice Risk: An attorney’s direct involvement in trust funding isn’t just about providing a full-service experience; it’s also about minimizing liability. Overlooking this critical step could expose the attorney to malpractice claims.
- Let’s say an attorney establishes a revocable living trust for a client with the main objective being to avoid probate. The client possesses a substantial real estate property. However, the attorney doesn’t actively ensure that the property deed is transferred to the trust. The client passes away, and their family is then subjected to a lengthy and costly probate process for the property that should have been protected by the trust. Feeling that the primary purpose of the trust was defeated, the family could have grounds to sue the attorney for negligence.
- Pro-Planning Tip: There are now tools to assist with trust funding so that you can offer this work in-house without impacting your current bandwidth.
- Inadequate Asset Inventory Support:
- Planning Phase: A thorough asset inventory ensures the estate plan’s comprehensiveness. Neglecting this leaves clients uncertain about the plan’s completeness.
- Administrative Phase: Incomplete records can result in complications, heightening emotional and logistical challenges.
- Example: While discussing a will, the attorney doesn’t ask about lesser-known assets or digital assets.
- Outcome: Valuable or sentimentally significant assets might be left out of the estate plan.
- Malpractice Risk: Omitting significant assets from the estate plan due to a lack of thorough inventorying can be a clear oversight, potentially leading to claims of negligence when beneficiaries feel they’ve been deprived.
- Overlooking Personal and Family Dynamics:
- Planning & Administrative Phases: Not fully grasping family relationships can produce estate plans misaligned with the client’s true intentions, leading to potential regrets.
- Example: A client’s wish to leave a specific family heirloom to a grandchild is ignored because it’s of minimal monetary value.
- Outcome: The heirloom might end up with someone who doesn’t value its sentimental importance, causing family rifts.
- Malpractice Risk: Misunderstanding or ignoring family dynamics can lead to estate plans that exacerbate family tensions or disputes, possibly resulting in litigation where the attorney’s guidance is called into question.
- Balanced Practice Perspective:
- Planning & Administrative Phases: For a truly rewarding practice, attorneys need to understand that their role extends beyond mere transactions and document production. Being present for clients’ life events and changes, and seeing the practice as a lifelong relationship, can deeply enrich the attorney-client bond.
- Example: An attorney finalizes an estate plan and then doesn’t engage with the client until contacted years later about an update.
- Outcome: The client feels they are part of a transaction rather than a continuous relationship, possibly leading them to seek another attorney.
- Malpractice Risk: While this point is more about client relations, an attorney’s neglect over time could be seen as a lack of diligence, especially if laws change or there are significant life changes that should prompt estate plan revisions.
- Pro-Planning Tip: Don’t underestimate the power of a handwritten note or card to acknowledge a life event. Dropping a card in the mail to let someone know you remembered their birthday or anniversary goes a long way to creating a strong attorney-client bond.
- Failure to Emphasize Ongoing Communication:
- Planning & Administrative Phases: Emphasizing the importance of regular check-ins and reviews fosters a continuous and supportive relationship, showing clients they are valued beyond the initial transaction.
- Example: After drafting a trust, the attorney doesn’t schedule periodic reviews or inform the client about relevant legal changes.
- Outcome: The trust might become outdated, and the client may feel unsupported.
- Malpractice Risk: Not keeping clients informed or updated, especially when there are legal changes that affect their estate plans, could be grounds for a negligence claim.
- Pro-Planning Tip: Schedule an annual check-in with each client. Each year, most people meet with their accountant and primary care physician. Because of the routine nature of these check-ins, we often think of items to discuss throughout the year and make either a mental or physical note to bring it up during those scheduled times. Creating a routine check-in for your clients will encourage them to compile information over the year, similar to what they do for physicians and accountants.
A successful and fulfilling trusts and estate practice not only requires technical competence but also deep empathy, long-term commitment, and a recognition of the holistic needs of clients. Overlooking these aspects can strain the attorney-client relationship while embracing them can lead to a rewarding, lifelong partnership.
About the Authors
Leah Del Percio and Tara Faquir are the founders of Trustate. Trustate is one of the world’s fastest-growing estate and trust administration and trust funding platforms dedicated to saving trusts and estates professionals hours of unbillable time while increasing their bandwidth. Trustate currently serves over 800 law firms and trust companies nationwide. Since Trustate’s founding in 2020, Ms. Del Percio and Ms. Faquir have been involved in all aspects of the firm’s development and growth. Passionate about creating educational content in this space, Leah and Tara are consistent providers of CLE programming through various organizations such as; Lawline, National Federation of Paralegal Associations, Inc., Krause, and many more.
Ms. Faquir holds a B.S. in Economics from the University of Miami and an MBA from the Fox School of Business at Temple University.
Ms. Del Percio holds a B.A. from the University of Miami, a J.D. from the Benjamin Cardozo School of Law, and an LL.M. in taxation from Georgetown University Law Center.