1.2: Basic Introduction to the Estate Planning Process

After the office has successfully completed a conflicts-check and the attorney has accepted the client, the first step is to schedule a more in-depth legal consultation between the attorney and the client to confirm the nature of the legal services the client desires. Sometimes clients are confused about the law and what they want, and sometimes their perception of what estate planning and probate matters involve is distorted by the media, social media, and what they’ve heard from friends and family. Incorrect or incomplete information about legal options is usually addressed during the initial legal consultation with the attorney prior to the in-depth interview. As a result, clients sometimes change their minds about what they want, even after the representation has begun. Once the attorney and client have agreed to the legal services that will be provided and the client has signed the fee agreement (and paid any required upfront attorney fee), it is time to begin the process of collecting information necessary to the client’s legal representation.

Goals/Purposes of Estate Planning

Before getting into details about the information needed from clients, and how to obtain it, it is helpful to understand the goals and purposes of estate planning. Creating an estate plan ensures that a person’s property will be preserved for and distributed to the people whom the person desires to benefit from their property, and that those who are benefiting from the property receive the largest distribution possible with a minimum amount of delay. Specifically, estate planning allows an individual to decide exactly who will benefit from their estate, and to what extent. Estate planning also ensures that the estate will not be destroyed by expenses related to illness, disability, infirmity, or death, nor by taxes imposed on the transfer of assets at death. Finally, estate planning allows the client, rather than the court, to make important decisions regarding who should be in charge of the estate and whether that person should be allowed to serve without a bond.

Estate planning also encourages individuals to make important decisions with respect to financial transactions and healthcare during life. Disability that renders a person incapable of or incompetent to make financial and health care decisions can happen at any time, and often arises very suddenly. A comprehensive estate plan includes documents to provide for decision-making authority if the person is unable to do so. Decisions regarding healthcare preferences, organ donation, funeral arrangements, and the final disposition of one’s body can also be documented.

Estate planning is also important for persons with children or other dependent family members. Various documents can assist with appointing a guardian/custodian for minor children and/or incompetent family members as well as providing for the care, support, and education of family members after a person dies. If a person leaves behind minor children or other incompetent dependents without naming a guardian in a will or trust, the probate court will have to choose a guardian and will likely place any money or property passing to those persons in a guardianship account. Having a judge decide who will care for and raise minor children or incompetent dependents can be emotionally wrenching for other family members. Also, court-supervised guardianships entail extra costs. A comprehensive estate plan can avoid this upset and expense by naming a guardian.

There are many documents involved in an estate plan, and they generally fall into the following categories:

• Non-testamentary estate planning tools: documents and distributions that are effective and occur while the person is still alive. Examples include
  • Durable General Power of Attorney for property and finances
  • Healthcare directives such as a Health Care Power of Attorney, Letters of Instruction, Advance Medical Directives, Living Wills, and Do Not Resuscitate Orders
  • Long Term Care Insurance and Disability Insurance
  • Inter Vivos Trusts
  • Lifetime gifts and charitable donations
• Testamentary estate planning tools: documents and distributions that are effective and occur only after the person dies. Examples include
  • Wills
  • Testamentary trusts
  • Will substitutes, such as life insurance, transfer/pay on death (TOD/POD) designation, Powers of Appointment, ownership of property in joint tenancy
  • Organ and tissue donation
  • Funeral trusts and instructions

Definition: Non-testamentary Estate Planning Tools

Non-testamentary estate planning tools: documents and distributions that are effective and occur while the person is still alive.

Definition: Testamentary Estate Planning Tools

Testamentary estate planning tools: documents and distributions that are effective and occur only after the person dies.

These documents will be discussed in later chapters.

Compiling a Family History

Estate planning and probate matters typically involve issues regarding finances, property ownership, income, debts, and expenses. Additionally, relational, psychological, and social dimensions of the client’s life are also implicated. Thus, competent representation of estate planning and probate clients often requires an enormous amount of fact-gathering that is sometimes equivalent to the client’s life history.

Interviewing Guidelines

An effective interview process will not only help clarify what the client wants from the legal representation but will also collect the information needed to accomplish the client’s goals. The in-depth client interview should occur only after the client has officially hired the law office by signing a fee agreement and paying any required up-front fee. Typically, at this point, the client has stated what they want/need the lawyer to do.

Although your primary purpose in conducting the interview is to obtain needed information from the client, an equally important purpose is to gain the client’s trust and confidence in you as a professional, to assure the client that their legal matter is important, and to demonstrate acute sensitivity toward the client’s feelings and experiences which may be embarrassing, frustrating, or anger-provoking. You’ll also want to make sure you schedule plenty of time (usually an hour or more) for the interview. Here are some things to keep in mind when conducting that interview:

1. Prepare an appropriate space. Make sure the interview takes place in a private space so that all information remains confidential. For a web-conference interview, make sure both you and the client are in private spaces, and use a secure network (not public wi-fi) and a secure web-conferencing platform. If the client is coming in person, reserve a private conference room at the office supplied with writing materials, water (or coffee, juice, or soda), and a box of facial tissues; make sure the client is comfortable. Turn on “do not disturb” for electronics and other devices and take other steps to prevent interruptions. Make sure there are no other files or papers lying open in the interview space.
2. Formulate responses to client questions to which you cannot respond. It’s practically guaranteed that clients will ask questions you are ethically not allowed to answer. Having prepared responses will give you confidence to respond without feeling awkward. For example,
   • “As a paralegal, I don’t have as much knowledge and skill as the attorney, so I can’t answer that question as it involves legal advice. I’ll be sure to refer that question to the supervising attorney.”
   • “Every case is different, so I can’t predict how long the case will take, what it will cost, or what the outcome will be. Rest assured that our office will use its skills and expertise to seek the best outcome in the most efficient way possible.”
3. Prepare yourself for the interview. Review the information from the client’s initial intake form and legal consultation. Make sure you have the appropriate interview checklist and other documentation ready before the interview begins. If you will need the client to sign releases, complete those documents and have them ready for the client’s signature.
4. Begin with required disclosures. Make sure the client understands the following:
   • As a paralegal, you cannot give legal advice. You will be working closely with the attorney handling the client’s legal matter.
   • Although you can provide general information about procedures, you cannot predict costs, time required, or results for their legal matter.
   • You need to take detailed notes during the interview to ensure you have complete and accurate information.
   • Complete and honest answers are critical to the successful representation of the client’s interests; remind the client that all information will remain confidential.
5. Obtain permission before recording the interview.
   • Before recording the interview, get permission to do so from both the supervising attorney and the client.
   • Once you receive permission to record the interview, start the recording with the following information:
     • Name of the client and any other relevant information about the client (for example, mention that the client hired the law office to obtain a divorce)
     • State your name and the names of any other persons who are present
     • Identify the date, time, and place of the interview
     • Ask the client for permission to record the interview. Wait to begin asking your questions until after you have received permission
   • Keep in mind that while there are benefits to recording an interview, the downside is that sometimes clients feel uncomfortable or may be less open and forthcoming when they know they are being recorded. Many times, the downsides of recording outweigh the benefits.
   • Even if you don’t plan to record the interview, let the client know you will be taking notes to share with your supervising attorney
6. Use empathetic and active listening techniques.
   • Maintain eye contact as much as possible (unless doing so would make the client especially uncomfortable).
   • Encourage the client to speak freely and explain answers beyond one or two words (tell me about that; help me understand …)
   • Repeat back portions of what the client has just told you to demonstrate listening and understanding (this may also encourage more details from the client)
   • Refer back to previous information as the basis for follow-up questions
   • Use language the client understands, and check for understanding if you are using legal terms (such as spousal support, maintenance, etc.)
   • Acknowledge the client’s emotions and experiences before redirecting, if necessary (“I can understand why that would make you feel angry …). Take breaks when necessary to help diffuse strong emotional responses.
   • Be aware of how your tone of voice, verbal language, body language, and mannerisms may be impacting the client, particularly if the client has been a victim of abuse or domestic violence.
   • Do not “talk down to” or disparage the client.
   • Notice the client’s body language and other verbal and non-verbal reactions to your questions and be prepared to adjust your interview techniques.
   • Wait for the client to finish answering the question and pay attention to all details of what the client has said.
   • Be prepared to ask follow-up questions to obtain more specific details. Refer back to previous information as the basis for follow-up questions
   • Expect the client to skip around topics, or to not tell the story in chronological order. Make sure you understand the order in which events occurred.
   • Clarify when necessary. If the client uses pronouns (he, she, they) instead of names, you may need to ask the client to confirm/use proper names rather than pronouns to refer to people.
   • Pay attention to the client's body language and mannerisms. Sometimes changes in posture, facial expression, or even tone of voice can signal the need for additional follow-up questions. If the client seems uncomfortable, it’s okay to take a break.
7. Make mental notes on the client’s personality. During the initial legal consultation, the attorney is primarily concerned with determining whether the office can help with the client's legal matter. The follow-up interview is also an assessment of the client’s demeanor and to discern potential red flags. Ask yourself whether the client
   • Appears emotionally distraught or volatile, overly angry, or vengeful
   • Has unrealistic objectives or expectations, or appears to want to tell the office “how to run” the case
   • Answers questions inconsistently or avoids directly answering questions
   • Frequently rambles, wanders off topic, constantly interrupts you, or appears otherwise unable to focus
   • Seems to be compromised by a mental health condition, or is under the influence of alcohol, drugs, or medications
   • Is flirtatious or otherwise makes you feel uncomfortable
8. Plan for needed follow-up. Know how you will end the interview.
   • Give the client an opportunity to voice concerns or questions.
   • Let the client know it is often necessary to meet with the client more than once.
   • Compile a list of documents still needed from the client. A pre-prepared checklist that allows you to use checkboxes to let the client know which additional documentation is needed is beneficial.
   • Determine how to access any necessary electronic data you may need for the client’s legal matter, for example, what does the client/client’s family use for
     • computers/devices/phones?
     • email providers/addresses?
     • social media platforms/accounts?
     • cloud-based applications, such as Microsoft Office 365, Google Drive, etc.?
   • Provide contact information for you and the supervising attorney

The Interview/Family History Checklist

Most law offices will have multiple interview checklists to be used depending on the legal matter involved. Below are the topics typically covered in checklists for various estate planning and probate matters. Obviously, not all information is pertinent to every estate planning and probate matter; similarly, this is not an exhaustive list.

Client Basic Information

• Name (current and previous), mailing address, personal email address, personal phone number, and other contact information
• Length of time at current address (if less than 5 years, previous addresses)
• Social Security number
• Date and place (City, State, Country) of birth
• Business/employer name, mailing address, email address, phone number, and webpage address
• Education (highest degree completed) and employment history
• Marital status (single, divorced, widowed, married, number of prior marriages)
• Military status
• Race and ethnicity
• Religious affiliation
• Citizenship/immigration status
• Documents needed:
  • Birth certificate
  • Social Security card, Medicare card
  • Passports, naturalization papers
  • Military records

Estate Planning Matters for All Clients

• Names, current contact information (address and phone), dates of birth, marital status, present health, and relationship (e.g., brother, niece, etc.), of all family members; if deceased, date of death
• Information regarding the client’s financial assets and worth, including retirement funds, investments, personal property, real property, digital assets, intellectual property, and wills/trusts naming the client as a beneficiary or in which the client has power of appointment
• Does the client own any business interests? If so, include
  • Name and type of business, including organization type (partnership, LLC, etc.)
  • Detailed description of client’s business interest, including operating agreements, partnership agreements, franchise agreements, etc.
  • Detailed description and value of all business assets and property
  • Detailed description and amount of all business debts, obligations, contracts, and other liabilities
• Does the client have a Safe Deposit Box? If so, specify its location. Does anyone else have a key or authority to access it?
• Advancements or other property previously transferred to family members or friends
  • Names and current contact information (address and phone) of persons to whom property was transferred
  • Detailed description of property transferred, including date and circumstances of transfer
• Information regarding existing debts or loans owed to the client by others
  • Names and current contact information (address and phone) of persons involved
  • Detailed description of debt/loan terms, including date and circumstances. Include documentation, if any
• Information regarding client’s existing debts, loan obligations, and financial liabilities, including credit cards
• Names and current contact information (address and phone) of other professionals consulted (attorneys, accountants, financial planners, funeral directors, insurance agents, religious advisors, stock brokers, tax preparers, etc.)
• Names and current contact information (address and phone) of client’s primary health care providers
• Information regarding the client’s life insurance, annuities, retirement accounts, long-term care insurance, and disability insurance including
  • Name/policy number, and type of policy
  • Face or death value (as applicable)
  • Annual premium
  • Dividends, cash surrender value, loans on cash value (if applicable)
  • Names of beneficiaries (life insurance and annuities)
• Information about the client’s casualty insurance (auto, home, boat, mortgage, etc.)
• Names and current contact information (address and phone) of persons to be named as
  • Power of Attorney for Health Care, and at least one successor
  • Durable General Power of Attorney, and at least one successor
  • Representative for Authorization for Final Disposition, and at least one successor
  • Personal Representative, and at least one successor
  • Trustee, and at least one successor (if applicable)
  • Guardians for minor child(ren) or incompetent beneficiary(ies), and at least one successor (if applicable)
• Names of desired beneficiaries, with relationship and current contact information (address and phone). Include information for charities, if applicable
• Are there any concerns about a beneficiary having a disability or being a spendthrift?
• Are there specific gifts (items of property, money, etc.) that the client wishes to give to a specific person or charity?
• Names of persons to be disinherited, with specific reasons
• Documents needed:
  • Previous estate planning documents (if applicable)
  • Documents demonstrating ownership or other interests in personal property, real property, business property, intellectual property, or businesses (deeds, titles, operating agreements, certificates of ownership, etc.)
  • Financial records, such as bank statements, investment statements, tax records, and retirement accounts
  • Current tax information
  • Cemetery deed, funeral trust, or other funeral documents
  • Documentation of disability of the client, if applicable
  • Court documents related to bankruptcy or other past, current, or pending litigation

Estate Planning Matters involving Clients Who Are or Were Previously Married

• All Information for the Client, above
• Current spouse’s basic information (same as Client's Basic Information)
• Are there any current prenuptial, post-nuptial, or separation contracts or agreements?
• Are there any children born or adopted into the marriage(s)?
  • Names, dates of birth, Social Security numbers, and current addresses
  • Health information, including physical/mental health conditions, special needs
  • If there is more than one marriage, which children are from which marriage
• If applicable, date of divorce(s) or annulment(s)
• Are there any concerns about a spouse or child having a disability or being a spendthrift?
• Documents needed:
  • Marital contracts (if applicable)
  • Divorce/annulment judgments and Marital Settlement Agreements (if applicable)
  • Documentation of disability of spouse or children, if applicable

Probate Matters

• All Information for the deceased person as listed for the estate planning client, above
• Deceased person’s date and place of death
• Deceased person's domicile (the place where a person intends to make their legal, permanent home) at death.
• Name and current contact information (address and phone) of personal representative/trustee. If there is no will or trust, information for the person wishing to act as estate administrator
• Names, ages, relationships, and current contact information (address and phone) of all of the deceased person’s heirs, beneficiaries, and disinherited persons
• Documents needed:
  • Original will or trust (if applicable)
  • Deceased person’s death certificate (and certified copies)
  • Documentation of disability of deceased person’s spouse, children, or heirs/beneficiaries, if applicable

Estate planning is for everyone, not just for wealthy persons or persons with children. The overall goal of estate planning is to make things easier for loved ones in the event of disability or upon death. These situations are challenging financially and emotionally. The last thing anyone wants is for their surviving spouse or family members to be faced with legal battles over healthcare or financial decisions, or interfamily arguments over estate assets. At a minimum, anyone 18 years or older should have documents appointing trusted persons to make health care and financial decisions in the event of an inability to do so, as well as a document directing who should receive any property owned at death. These documents should be updated after any major life change, including but not limited to marriage, divorce, birth of a child, death of a spouse or other family member, disability, changes in property ownership, or financial condition. Documents should be stored in a safe place that can be easily accessed by representatives.

The remaining chapters of this textbook will focus on laws relating to property ownership and succession, the legal requirements for estate planning documents, and probate proceedings.