Are Estate Planning Attorneys Lousy Listeners?

I had a myriad of reactions when I read the article Square Peg, Round Hole by Hannah Shaw Grove and Russ Alan Prince in the Aug/Sept issue of Private Wealth Magazine. The article discusses some disturbing conclusions arising out of a survey of trust and estate attorneys and their clients. The central theme of the article is that too many estate planning clients are paying to design and draft estate plans that are never implemented. More interesting, though, were the conclusions of the survey as to why this implementation doesn’t take place.

The most common reason clients who didn’t implement estate plans was that the plan “did not satisfy the families’ goals, wants and objectives.” So, here come my multiple, even conflicting, feelings about that statement. Insecurity — am I not satisfying the goals of my clients? Smugness– I work hard to identify my client’s goals and objectives, and most of my clients sign their documents. So, I must be better than the average attorney at this, right?

Well, I think I am better than average in this area. However, this survey supports my gut feeling that saying I’m better than average isn’t saying much. The survey found that most families are uncomfortable with the attorney, finding them to be poor listeners who use too much legalese and can’t (or won’t) explain how the plan helps them meet their goals.

I work hard to avoid legalese, and I think I’m pretty good at explaining complex concepts in ways that are easy to understand. The feedback I’ve gotten on my workshops, books, and articles reinforces my beliefs about that. I’ve given some thought to the client goals that can be met with estate planning, hence my recent post on that very topic. Yet, I don’t think I’m working hard enough to explain to clients how the legal tools connect directly with accomplishing their goals.

Even before reading the results of this survey, I had recently begun using one of the screens in my Panaboard (an electronic whiteboard) to write down the client’s goals as we discussed them in the initial client meeting. As the Private Wealth article notes, clients often can’t articulate all of their goals without assistance from their attorney to crystallize and prioritize them. We often spend a significant amount of time in the initial meeting trying to do just that. I like the process of writing the goals on the screen because it helps clients to see them in black and white. I can also print the screen and use it in future meetings to check in with the client to determine if those goals remain unchanged and the client understands how the tools we are using will accomplish those goals.

Of course, sometimes the client’s goals are in conflict. The survey notes that clients often feel their estate plans are too complex.   Yet the reason the clients consulted estate planning attorneys was to create sophisticated and intricate plans. I certainly encounter this tension with many clients. They express a desire for “something simple.” Yet they have complex needs that require complex solutions.

Of course, I could do a better job of helping clients prioritize their goals. Is a simpler plan that meets fewer goals preferable to a more complex plan that meets more of your goals? And I’m sure I could do a better job of increasing the client’s comfort level with the plan’s complexity.

So, in addition to helping clients with their goals, I’ve got new goals of my own. One is to become a better listener to my clients, and another is to have more frequent conversational “check-ins” to gauge the client’s comfort level with how the plan meets the client’s goals. I’ll keep you posted on how that turns out.

But before I sign off on this post, I had to point out another reaction I had to this survey. I think the way the authors define plan implementation is focused only on the documents. It appears that authors define implementation as signing the documents prepared by the attorney. I would expand that definition to funding assets so those assets are lined up with the plan in the documents. This would be transferring assets to trusts (see this Washington Post Q & A for an example) or partnerships, changing ownership where appropriate, and certainly changing beneficiary designations of insurance, retirement plans and similar assets. Of course, my definition just increases the cause for concern, because if too many clients aren’t signing their documents, it’s a fair assumption they aren’t following through by funding their assets either. I’ll have a future post on funding and implementation.

Estate Planning Assures Those You Want To Benefit Will Benefit

This is the first in a series of blog entries on what estate planning can accomplish.

Estate planning can assure that your assets and legacy pass to whom you want in the way that you want. Without estate planning, your assets will be subject to the laws of intestacy, which are the laws which control the assets of people who die without a will. A description of Colorado’s plan for your assets can be viewed by clicking here, or you can try the “Intestacy Calculator”

Those you want to benefit may be family members, individuals outside your family, or charitable organizations. You may want to benefit different family members than those that would benefit under the state’s plan. Or you may want to benefit the same family members but in a different way. For example, in a second marriage situation, the state presumes that you would leave some of your assets to your surviving spouse and some of your assets to your children. Yet, many of my clients want to ensure that the surviving spouse benefits the most, if not entirely, by the assets. In other cases, my clients want their surviving children to receive most, if not all, of their estate. However, the state’s plan would provide for the children of a deceased child, that is, the grandchildren, would receive the deceased child’s share.

Many people do not want their estate to follow the state’s plan for minor children who inherit. The state’s plan is for the minor’s inheritance to be controlled by a conservator until the minor reaches the age of majority. In Colorado, that age would be twenty-one. Many of my clients are uncomfortable with the idea of giving a twenty-one year old complete access to the inheritance. Other clients want to make sure that a minor child’s parent, who may be an ex-spouse, is not given control of the minor’s inheritance.

Then there are the non-family members we may want to benefit. The state’s definition of family is more narrow than the concept many other people embrace. For example, stepchildren are not provided for in the state’s plan. Some of my clients want to leave assets to an ex-spouse, which can only be accomplished by estate planning executed after the divorce is final. Others want to benefit friends, employees, or other people who have been important in their lives. None of this can be accomplished without estate planning.

Neither can your estate benefit any charities without conscious planning of your estate. Whether it’s a gift of a specific dollar amount or asset or a bequest to a charity that would take place only if your closest family members are no longer living, the state’s plan never contemplates that you would have wanted to provide for anyone but family.

As a closing caveat, I want to point out that estate planning isn’t the same as having a will. Estate planning also includes naming the beneficiaries of your life insurance, placing your assets in trust, or gifting assets while you are alive. As I’ve said before and will most likely say again, it’s not the documents that matter. What matters are the conscious decisions made after careful thought, usually with the aid of counseling from a qualified attorney. That’s estate planning.