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Estate Planning

An estate planning practice may also be called a “trusts and estates” (“T&E”) practice. T&E lawyers work primarily with individuals in areas that are among the most important in their lives: their families, wealth accumulation, wealth protection and wealth transmission. They handle issues as sensitive as contemplating the client’s own death, which may call on a practitioner’s counseling skills as well as close attention to a range of legal and tax considerations necessary to accomplish the client’s objectives.

The various goals of estate planning include making sure the greatest amount of the estate passes to the estate owner's intended beneficiaries. This often means paying the least amount of taxes and avoiding or minimizing probate court involvement. It is therefore essential that an estate planning attorney have an expertise in tax law. Additional goals for an [...]

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An estate planning practice may also be called a “trusts and estates” (“T&E”) practice. T&E lawyers work primarily with individuals in areas that are among the most important in their lives: their families, wealth accumulation, wealth protection and wealth transmission. They handle issues as sensitive as contemplating the client’s own death, which may call on a practitioner’s counseling skills as well as close attention to a range of legal and tax considerations necessary to accomplish the client’s objectives.

The various goals of estate planning include making sure the greatest amount of the estate passes to the estate owner's intended beneficiaries. This often means paying the least amount of taxes and avoiding or minimizing probate court involvement. It is therefore essential that an estate planning attorney have an expertise in tax law. Additional goals for an estate typically include providing for and designating guardians for minor children and planning for incapacity. Techniques used to accomplish these goals range from the most historical (wills and trusts) to the most cutting edge, highly complex and sophisticated.

The practice of T&E lawyers is highly varied, depending on what client base they serve. In most private practices they serve individuals and their families, and the client’s ability to pay is a major factor in determining the level of the T&E practice. Clients of modest or little wealth usually cannot afford, and usually do not have a need for, very complex or sophisticated services. Clients of substantial wealth can afford highly complex and sophisticated services, and they usually both desire and require these services. T&E lawyers servicing clients of substantial wealth usually work long days, which are divided between meetings with clients and/or their financial, accounting or other allied advisors; reviewing information received from clients and/or their advisors; designing, refining and analyzing plans; drafting documents or reviewing documents drafted by colleagues or others; meeting with colleagues and staff; and continuing education activities. Clients expect prompt and responsive answers to their questions, by voice or e-mail. Full, clear explanations of a proposed plan must be given to the client, including the risks and benefits of each aspect of the plan. Excellent client service is an expected and important aspect of this practice.

An estate planning practice typically includes the following services: estate and tax planning, estate and trust administration, preparation of wills, trust instruments and related documents, preparation of prenuptial agreements, charitable planning, use of wealth transfer devices, such as family limited partnerships, limited liability companies and intra-family sales, the establishment of private foundations and advice with respect to their management, planning for disability, including documents used to delegate health care decisions, life insurance planning and planning for valuation and disposition of intellectual property assets.

After death has occurred, the T&E lawyer advises the personal representative, such as the executor or trustee, regarding issues that arise out of the death. This includes whatever is necessary to carry out the decedent’s estate plan and defend against challenges to the plan or to the estate itself, from taxing authorities and others. While much of the planning portion of the practice is non-adversarial, defending against challenges (such as IRS audits) requires the ability to argue zealously, both orally and in writing. Lawyers who offer probate services work with personal representatives and heirs to complete the requirements of the probate process. They assist in completing and filing an accounting of the assets of the estate, pay all final debts and taxes, and oversee the orderly distribution of property in accordance with the terms of the will.

On the litigation side, trust litigation lawyers handle claims involving breach of fiduciary duty or breach of the terms of a trust, representing trustees as well as beneficiaries. They litigate claims involving improper management of trust funds or challenges to the distribution of funds held in trust. Probate litigators represent any party involved in disputes that arise during the probate process, including executors, administrators, personal representatives or heirs/beneficiaries. They also handle all types of controversies related to the settlement of an estate, including will contests, challenges to the accounting or valuation of assets or allegations of breach of fiduciary duty by estate representatives. These attorneys may also litigate claims involving lack of mental capacity, undue influence, duress and fraud /misrepresentation, or be involved in resolving disputes regarding conservatorships or guardianships.

A major difference between estate planning and many other practice areas is that many of these clients are individuals, not large institutions. This means a lot of the estate planner’s time is spent working with people who are not lawyers and explaining complicated tax and legal issues to them. This is a good practice area for lawyers who are patient communicators and enjoy teaching people.

Key skills and characteristics for a successful estate planning practice include:

• Active listening skills, in order to understand and to clarify the client’s expressed and unexpressed hopes, goals and desired results

• Data-gathering and analytical skills

• Planning skills – the ability to project present situations into the near and long- term future

• Precise and clear writing skills

• Curiosity about the breadth of human activities, but with particular emphasis on economic activities

• Organizational skills

• Creativity – developing new approaches to solve problems

• Willingness to participate in lifelong learning in a field that requires broad-ranging and continuing education.

T&E lawyers practice throughout all 50 states and in most foreign jurisdictions. Because state law heavily influences the entities they create and the documents they prepare, many T&E lawyers limit their practice to one state; others have a national practice associating local counsel as necessary. T&E law is constantly evolving and is subject to what sometimes appear to be radical changes because of actions by Congress or state legislators. Major changes in the Federal Estate and Gift Tax laws have happened periodically in the past.

Estate planning is a specialty that can be practiced in a small boutique firm or small department of a larger firm but many estate planning lawyers have solo practices.

The nature of the practice often results in T&E lawyers developing experience in other practice areas, including income tax, real estate and business. Some T&E lawyers may leave private practice to work for institutions in the financial services field (such as insurance companies, trust companies or wealth management companies).

 
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