Estate Planning FAQs

In an ideal world, there is little to no conflict when it comes to settling an estate, and in most cases, there isn’t. Unfortunately, problems do arise. This could be because family members contest what is outlined in the deceased’s will or the deceased didn’t leave a will.

That’s when a case will go to litigation. During the litigation phase, the estate litigation attorney will file the appropriate petition to the court that states the relevant facts and laws. From there, litigation officially enters the discovery phase in which evidence is sought and examined. This includes document subpoenas, bank statements, and sworn depositions.

Before a case is brought to full trial, the judge will usually order the parties to enter mediation. That means both parties will meet with a mediator to see if disagreements can be worked out without the expense of a full trial.

Should mediation fail, the next step is preparing for the trial. This is usually a “bench trial” which means a judge will preside over the trial, but there won’t be a jury. Estate litigation is a complicated and expensive process, which is why mediation is always the preferred outcome.

How much you pay for the services of an estate planning lawyer will vary depending on the complexity of your situation.

Your attorney may charge a flat fee when he or she can quickly assess your needs and know what type of estate plan you require. Your estate planning attorney will take your financial status, family situation, and other factors into consideration and come up with a fee. This can be as little as $500 to $1,500 in some cases, but of course, could go higher.

If your situation is more complex, then your attorney may charge you an hourly rate. On average, experienced attorneys may charge $250 to $400 per hour to prepare more sophisticated estate plans. When charging an hourly fee, your attorney may ask you to provide a retainer before starting work on your case. A retainer is a prepayment of fees that the attorney will draw from as they work on your case.

Most estate attorneys will offer free consultations so you can discuss what you need and get a sense of how much their services will cost. No matter what type of payment arrangement you decide on, be sure to get it writing.

Most people should hire an estate planning lawyer when planning their estates. In some instances, people have such straightforward situations that they could probably handle creating a will themselves, but even then, having an attorney involved can help give peace of mind that everything has been done correctly.

Keep in mind that laws vary from state to state about what can and can’t be in a will, trust, or power of attorney documents. Who can and can't be a witness to a will, trust, or medical or financial power of attorney There are specifics about what formalities must be observed when signing a will, trust, or medical or financial power of attorney. That’s a lot for the average person to keep track of.

Bottom line: it’s easy to make errors when planning your estate. One wrong word or one missed signature can change the intent or invalidate a will. Working with an estate planning attorney can help you avoid these costly errors and make sure your assets are distributed as you intended.

Most estate planning attorneys would agree that the best age for you to do estate planning is whatever age you are right now. That is to say, it’s never too soon or too late to start creating an estate plan.

Young, single people often think they don’t need an estate plan because they don’t have too many assets. But having an estate plan in place could help parents or a sibling pay for funeral expenses, gain access to financial accounts, and know what to do with personal belongings.

Alternatively, some people find themselves married with children, grandchildren, and significant assets, but with no estate plan in place. They may have been putting it off, waiting for the perfect time. Those people should definitely create an estate plan sooner rather than later.

Ideally, you should but a basic estate plan in place when you reach adulthood. Then, you can amend and add to the plan as you get older, have children, buy a home, etc. The best estate plan is one that changes as your circumstances change.

A will is a vital estate planning document and allows you to distribute your assets and property according to your wishes. However, there are several items that should not be included in a will:

• Property held in a living trust or joint tenancy – property deeded to a living trust cannot be willed to someone else, and a will cannot change the right of survivorship in joint tenancy, which passes to the joint tenant by law.
• Accounts with designated beneficiaries. Financial accounts and life insurance proceeds go to beneficiaries who are designated by you via a designated beneficiary form and cannot be given to someone else through a will.
• Contingency gifts. Leaving assets that are contingent on the beneficiary performing a duty or act (like marrying or attending college) is not legal in most instances.
• Provisions for those with special needs. If you have someone with special needs in your life that you care for, then you should create a special needs trust to ensure they get the care and resources they need after you are gone.
• Provisions for pets. Pets cannot legally own property so you can’t leave anything to them in your will. However, you can set up a pet trust to ensure your pets are cared for should they outlive you.
• Funeral instructions. A will isn’t read until after a funeral, so don’t leave funeral instructions in your will. Write a separate letter to loved ones outlining your wishes.

If your estate documents are stuffed in a filing cabinet or an old banker’s box, then it’s time you found a better storage system. These documents a very important and should be kept in a safe, but easily accessible place. Here are 5 suggestions for estate document storage.

• Fireproof box: A sturdy fireproof box is a great storage choice. Be sure to put your documents into plastic storage bags first, for extra protection.
• Safe: Safes are generally secure and resistant to water and fire. However, you will also need to make sure someone else aside from you knows how to get into the safe.
• Your attorney: If your attorney has written legal documents for you, then he or she will typically keep originals or copies in their office. Having a set of estate papers with your attorney and a set in a fireproof box is a good strategy.
• An out-of-town friend or relative: Asking a friend or relative you trust to hold onto your estate papers is a good way to prevent all of your documents being destroyed by a regional natural disaster such as a hurricane or a flood. If you choose to do this, be sure to include the contact information for your attorney and the executor of your will. Of course, with this option you won’t have immediate access to any of your documents should you need them.
• Online: Like everything else these days, estate planning document storage has gone digital. You simply upload the documents into an online database and provide the appropriate people with the log-in information they need. In just a few clicks, they’ll have all of your documents at their fingertips. No sifting through papers, no confusion. Keep in mind that you will still need original documents in order to satisfy a healthcare provider, a bank, or the local government.