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Competence and skills can be challenging to evaluate in foresight but are often obvious in hindsight. In the planning phase, it is difficult to ascertain whether the drafted documents truly accomplish a client's objectives. Success is often determined many years later, after the clients have died, based on the tax bill at that time and whether the governing instruments are able to serve the intended beneficiaries without conflict, headaches or heartaches during estate and trust administration.
Two important measures to consider are: (1) how long the attorney has been practicing; and (2) how much of the attorney's practice is devoted purely to estate planning and administration. Generally, the more experience specifically with estate planning and administration, the better.
Aside from considering educational background and professional experience, it can be helpful to look at professional recognitions by the attorney's peers. Historically, Martindale Hubbell's AV rating was the gold standard to measure both competence and ethics. Martindale had changed its process in recent years, and newer competent attorneys may be less inclined to have an MH evaluation done. Instead, many rely on peer recognition measures like Leading Lawyers®, Best Lawyers®, and Super Lawyers®.
Another informative credential is whether the attorney has been admitted as a Fellow in the American College of Trusts and Estate Council (ACTEC), which requires them to speak, write and/or engage in legislative activities and requires peers to have indicated they are comfortable referring clients to the lawyer.
Estate planning is an intimate process. It can be morbid and intense. Estate planners need to ask extremely personal questions and be there for clients at times when they are most raw, having just lost a spouse or other loved one. It is important for advisors to consider whether the clients and their family members will like and feel comfortable with the attorney.
Estate planning documents are of no use until they are signed and trusts are funded as intended. Does the attorney have a process in place to help clients actually get the documents signed and trusts funded?
When in practice, my own timeline was about 6-8 weeks from first meeting to execution of the basic documents. I found it best not to delay getting essential documents in place while sorting out the details of more complex lifetime gifting plans. My process was to schedule the meeting to sign the documents at the first meeting, as I found clients were more likely to remain on track with the execution meeting already set aside in their calendar.
No one is perfect. We all make mistakes. But when reviewing one's own drafting it is very difficult to always spot them. Advisors should ascertain whether the attorney uses a checklist when reviewing drafted documents to help avoid missing things. Also, find out if they have a second attorney review the drafting attorney's work.
Note that even a sole practitioner can have a good review process if she uses a detailed checklist and builds in sufficient time to put down the documents and look at them one final time on a different day than when they are drafted.
A formal review process may increase the costs of the plan. But, who wants to be penny wise and pound foolish if the plan contains drafting errors?
Keeping original documents in the client's safety deposit box is often not ideal. There are costs involved in maintaining the box, and when the documents are most needed, they may be difficult to locate.
My preference is to use attorneys who are willing to store original documents in their firm vault. Many (most?) firms will do so at no annual cost to the clients because they recognize it is a benefit to both the client and the attorney to know where the originals are stored.
I have heard that some lawyers view this practice as a conflict because clients may be shy about firing the firm when it stores their documents. In my experience, I have never seen this as a problem. When a prior firm is fired, usually the clients simply send that firm a letter instructing that all original documents and other files be sent to the new attorney.
Regardless of where they are stored, it is best to make sure photocopies of an instrument have a label or other indication of where the original is kept. And, be sure to update those labels or other indication if the original documents are moved to a new location.
Does the attorney have a partner, associate or other colleague who can step into the attorney's shoes if the attorney is not available temporarily or permanently? What will happen to the attorney's practice at eventual retirement? Working with a team of attorneys and paralegals of different ages and at different stages of their careers can be a good sign and provide added comfort to prospective clients. This can be a delicate balance because at the same time, clients don't want their legal work to be handled by a team so large that it is overly expensive or inefficient.
This is related to questions 1, 4 and 6 above. Often if something is wrong with the estate plan, it may not be discovered for many years. If the attorney and his or her firm are rightfully on the hook for a mistake, what is the likelihood someone will be there to hold the bag at that time?
Finding out estimated costs is important to avoid surprises. Many estate planning attorneys bill by the hour, but sometimes a higher fee attorney has a more efficient process in place that can lead to a lower cost plan. Other attorneys may bill a fixed-fee per project.
Having an estate plan prepared can be like remodeling a kitchen or bathroom; and hiring an attorney is akin to hiring the designer and contractor. If clients pay too little, they may end up with shoddy workmanship that causes problems later. Similarly, once the walls or floors are opened up, there may be surprises that require an adjustment in estimated costs. Clients need to be realistic about their own expectations in terms of service and quality. All plans are not equal, and typically, one gets only what one pays for.
Estate planning is a team sport. Attorneys, financial advisors, accountants, insurance professionals and others all need to work together to make sure clients' needs will be met. It is important to build a cohesive team who will have good communication and work together to accomplish the clients’ objectives. Periodic team meetings can be helpful toward this end.
Attorneys cannot share their clients' names without express permission, but it is a good idea to ask for 2-3 references of similarly situated clients who can speak to the advisor, or the client directly, about their experience of working with the attorney. Be sure to ask the references about how well the attorney digested other clients’ goals and customized the plan accordingly. Ask about the timeline for completing the basic plan and any higher level planning. Ask about the attorney’s involvement in follow-up like trust funding and administration and annual communications. And of course, ask about costs and whether the attorney was good about estimating costs and communicating when extra work or expenses were necessitated. Finally, ask if the references felt they received good service and good value for the money.
