Selection & Guidance – MJS PC

Guidance in Selecting an Estate Planning Attorney

This guidance is written for my clients’ use in the transition of their
estate planning work to a new attorney.

Estate and Estate Planning Areas

Estate planning consists of six distinct types of work. Attorneys who practice
and would be excellent in one area may not handle matters in one of the
other areas. The first step in selecting an estate planning attorney is to
determine what type of assistance you need. The following is a brief overview
of each of these areas:

Estate Planning for a nontaxable estate. 
In the 1980s and 1990s most of my clients had taxable estates. The exemption from
estate tax during those years ranged from $125,000 to $600,000. Since that time
the estate tax exemption has continued to increase but with a return to old levels
after a set period. The estate tax exemption for 2020 is $11.58 million. This
exemption is scheduled to drop to half this amount after the end of 2025. If the
value of your estate will not exceed that amount ($5.79 million), then you do not
need planning to avoid estate taxes.

You will need a Will, possible a Revocable Trust and disability documents. Except
for estate planning attorneys who have limited their practice to litigation or
probate, most attorneys prepare these testamentary and disability documents and are
familiar with and use generation skipping trusts (which provide protection against
creditors and estranged spouses) and life insurance trusts to remove an insurance
policy from an estate to bring the estate down to the non-taxable level.

Wealth transfer planning. 
Some estate planning attorneys also provide wealth transfer planning for clients.
If you have a taxable estate, then you may need these services. I say you may need
these services because you may decide that you do not want to have your plan
governed by estate tax reduction or you may be able to take some steps in the
structure of your Will, by lifetime gifts or by creating a life insurance trust
to own a life insurance policy to avoid estate taxes.

Attorneys who handle wealth transfer planning are familiar with and use
intentionally defective grantor trusts (and sales to these trusts), GRATs,
Qualified Personal Residence Trusts, beneficiary grantor trusts (under Section
678 of the Internal Revenue Code) as well as Generation Skipping Trusts, Split
Purchase Residence Trusts, partnerships and other sophisticated estate planning
techniques. If your estate is not taxable, you do not need these trusts or
entities to save taxes, although the generation skipping trust may be used to
protect against creditors and estranged spouses and a partnership may be used to
hold a jointly owned property.

Elder Law and Special Needs Planning. 
Elder law and special needs planning are distinct areas of expertise. This area
is as complex as the tax law. If you are planning to both qualify for government
benefits and to retain some of your assets to supplement your care (or for your
spouse to retain assets if your spouse is not disabled), then you should retain an
attorney who focuses his/her practice in this area.

A related area is special needs planning. If you have a special needs child who
will need governmental assistance, I recommend that you retain an attorney who
specializes in this type of planning.

Probate. 
Probate is a broad area. Texas has a simplified probate process that is available
if the decedent’s Will provides for the appointment of an independent executor.
I believe all estate planning attorneys provide services to probate a Will with an
independent executor.

Probate also includes the probate of a Will that does not provide for the appointment
of an independent executor, providing probate services when the decedent had no Will,
and providing probate services when there are problems in the structure of the Will.
An attorney whose practice focuses on all types of probate matters will be the most
efficient in providing services in these or other unusual situations.

Estate Administration. 
Administering an estate is the process of collecting the assets, paying any debts of
the decedent and distributing the estate as provided in the decedent’s Will (and/or
Revocable Living Trust). There is some administration in any estate. However, if the
estate is large, if trusts are created for the beneficiaries, if the estate requires
the filing of an estate tax return, includes unusual assets or has other complicating
aspects then the administration is likely to require a higher level of expertise and
experience.

Estate and Fiduciary Litigation. 
If there is conflict regarding the probate of a Will, the administration of an estate
or the management of a trust that cannot be resolved by agreement, then an attorney
specializing in estate and fiduciary litigation provides the expertise and knowledge
to address these situations.

In selecting an estate planning attorney, consider what your needs are. If your
estate plan includes “grantor trusts” and “cake trusts”, I recommend that you select
an attorney who has experience structuring and implementing plans that utilized these
trusts.

My practice focused on wealth transfer planning and the administration of large or
complex estates. I also provided estate planning services to almost all of my clients.
Many of the estates that required wealth transfer planning in the 1990s, no longer
need that type of planning with the increased exemption.

Selection Process

With that background how do you select an attorney? Referrals from friends is always
a good place to start. You can also obtain a referral from an attorney you use for
other purposes, your CPA or your financial planner. I recommend that you obtain three
names all of whom come highly recommended. I recommend that you call each one and
talk with them generally on the phone and set up a meeting with the one (or two or
even all three) with whom you connect on the phone call. I recommend that in deciding
among the attorneys that are recommended that you rely on your gut. Your referral
process should provide you with three qualified attorneys, and your process is to
determine who you feel you can comfortably confide in regarding the most important
(and in some ways intimate) aspects of your life – your family and your money.

Although estate planning attorneys draft documents, the estate planning attorney is
most importantly, a relationship. The more that the attorney knows about you, your
family, your values, your concerns and fears, your hopes, the better the attorney
can design your estate plan. Your plan can only be as good as the information that
you provide the attorney; financial, yes, but also family dynamics and your wishes.

Credential Guidance and/or Sources other than the Referral Sources
Listed above

American College of Trust and Estate Counsel (ACTEC) Fellows.

ACTEC is a national organization of estate planning attorneys who practice
predominantly in estate planning and are very involved in the profession. Estate
planning attorneys who specialize in estate planning and are very involved in the
estate planning profession through Texas Bar involvement, drafting legislation,
writing professional legal articles and by speaking can be nominated by other
Fellows of ACTEC to be members of this organization. The process is highly selective
and is an honor to be a Fellow. However, many excellent estate planning attorneys
are not nominated for ACTEC because they are not active in bar contributions, writing
and speaking.

The ACTEC website (www.actec.org ) has a list of attorneys who are
Fellows. You can search by state and city to obtain a list of attorneys in Dallas or in
any other city.

Board Certified in Estate Planning and Probate – Texas Board of Legal Specialization

Texas provides a certification process for estate planning attorneys. If an attorney
practices predominantly in this area and has been practicing for at least five years,
the attorney can obtain recommendations from several attorneys and a judge and can
apply to be board certified in estate planning and probate. If the applicant is approved,
then the applicant must take a test and if the attorney passes the test, then the
attorney is board certified. Board certified attorneys must then maintain their
certified status by continuing th practice predominantly in this area, keep current
in the area by attending continuing education programs and by updating their
certification every five years with additional recommendations. Selecting an attorney
who is board certified is a useful way to determine whether a recommended attorney has
the requisite skills.

However, an attorney may decide not to pursue the board certification process. The
fact that an attorney is not board certified does not mean that the attorney cannot
be an excellent estate planning attorney. The certification exam covers a number of
areas, including estate tax. Attorneys whose practice does not involve estate tax
issues, may elect not to become certified since learning about the estate taxes is
not relevant to their practices. I was board certified in the early 1980s but
cancelled my certification when I stopped practicing law for a couple of years in
what I thought was going to be a career change. After returning to the practice of
law in 1985, I did not go through the certification process again until 1993.

You can search for board certified attorneys on the Texas Board of Legal
Specialization website for Board certified attorneys (www.tbls.org) searching by
area of expertise and geographic area.

I have worked with some of the ACTEC Fellows, Board Certified attorneys and with
other attorneys who focus their practice on estate planning but are neither ACTEC
Fellows nor Board Certified Attorneys. I know other attorneys by reputation but have
not worked with them. For those clients who would like to know who some of the
attorneys I have worked with (and are in private practice), the following is a
partial list of ACTEC Fellows and Board Certified attorneys. Since my practice did
not include litigation or elder law most of these attorneys do not practice in those
areas. The list includes the date the attorney was licensed but the license date will
not be an accurate reflection of age if the attorney had a career prior to becoming
an attorney. I omitted all attorney with a license date prior to 1980. Two attorneys
who are excellent who were removed on this basis but are under 70 years old are Barbara
Anderson (ACTEC Fellow and Board Certified) and Don Totusek (Board Certified). Either
of whom would be a good choice if the age and possible retirement on the horizon is
not an issue.

One young attorney who is not yet eligible to take the board certification exam but who
has a great reputation (Best Lawyers to Watch 21-22; D Magazine Best Lawyers 2021) is
Jackie Wheeler Davis at Jackson Walker. I worked with Jackie’s mother, Karen Wheeler,
and have kept up with Jackie’s career. Her contact information is listed in the
Attorney Contact Information section.

 

ACTEC Fellows:

John Bergner
Mary Burdette
Lora Davis
Shannon Guthrie
Jim Mincey
Eric Reis
Laurel Stephenson
Christine Wakeman

Board Certified Attorneys (those listed above as well as those listed below):

Brandy Baxter-Thompson
Kristin Brown
Shawna Brown
Scott Carter
Jack Hales
Sam Long
Tom Neuhoff
Claire Raggio
Erny Simmons
Dani Smith
Karen Wheeler

 

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