Every attorney has his or her own style and system for developing and implementing an estate plan, but that doesn’t mean there are no commonalities. In fact, there are certain considerations and practices that are common to the estate planning process for most attorneys. For those of you new to estate planning practice—and those who want to confirm they aren’t missing anything—here are the first five of the 10 steps of this common procedure for developing an estate plan and putting it into place (stay tuned next week for the next 5 steps!).
Step 1: Initial Contact. The initial contact is often when a potential client contacts the attorney to see whether he or she can handle the client’s estate planning. Get enough information about the client in this contact to ensure that the engagement presents no conflicts of interest with other clients (see Step 2). Also discuss the nature of the proposed engagement and any timing issues to determine whether you can take on the matter. This is a good time to discuss your attorney fees and to get basic personal information about the client. You may want to set a time for the initial client meeting (see Step 4) during this initial contact.
Step 2: Conflict Search. Run a conflicts check on the names of the client and his or her immediate family members, as well as any business entities the client controls before receiving any sensitive information. Evaluate any existing or potential conflicts and obtain any necessary letters from the new client and existing client consenting to the engagement or from family members when more than one family member will be represented. This is especially true when representing a married couple or domestic partners, because you’ll want to get a signed waiver of the potential conflicts of interest from each of them, and their agreement that anything either of them tells you isn’t treated as confidential as between them.
Step 3: First Written Communication. After the initial contact and conflicts check, and the resolution of any potential conflicts with your existing or former clients, follow up with a written communication to the prospective client. The first written contact might include an engagement letter, a questionnaire, and educational materials (i.e., materials summarizing estate planning issues).
Step 4: Initial Meeting. The initial meeting between you and the client may be the only time for a lengthy, free-ranging discussion, so it’s important to maximize this opportunity. If the clients are married or domestic partners, both should attend the initial meeting if possible. Among other things, the discussion can provide the means to explore
- the nature of the client’s relationships with various family members or specific medical issues that may affect the client’s planning needs;
- the client’s thoughts about his or her business, such as its economic viability and future prospects in the event of the client’s death or disability;
- the client’s philanthropic intent, to determine whether any charitable gifts are appropriate; and
- make an assessment of the client’s competence.
Step 5: Formulating a Plan. You may be able to provide the client with a proposed estate plan at the initial meeting and discuss its various details. On the other hand, you may need to become more familiar with the information provided by the client, perform research, or simply spend some time in reflection before forming a comprehensive plan proposal. If the proposed plan is complex and its nature was not substantially determined at the initial meeting, you may want to send a letter to the client outlining the plan before drafting the documents. Always get the client’s approval of the proposed plan and obtain any needed additional information or decisions by the client before beginning to draft the plan documents.
Next week we’ll share five more steps in this procedure, which will focus on putting the estate plan in place.
Each of these steps is explained in detail, along with handy sample documents, in CEB’s California Estate Planning, chap 1. CEB also has many CLE programs on estate planning designed to help in various aspects of development and implementing an estate plan.
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