Planning your estate can be a difficult process and choosing the right attorney to help you through the process can be even more daunting. There are a lot of urban myths out there about elder law and it’s not surprising, given that much of the information is phrased in difficult to understand legalese.
In this blog post we’re going to debunk the top 10 misconceptions about estate planning and we’ll do it using clear cut language to help empower you to make the right decisions for your family.
Myth 1: Any lawyer can write a trust, a will, power of attorney or living will.
It might seem like estate planning should be easy for any high powered attorney but it’s important that you choose an attorney who is completely familiar with the nuances of elder law. Many attorneys try to be everything to everyone make some egregious mistakes because they do not practice in a particular area day in and day out and do not understand changes in law or potential minefields for the client. You want to choose an attorney who is focused on your needs. You do not want to choose someone who is defending a criminal on Monday, handling a divorce on Tuesday, a bankruptcy on Wednesday and then on Thursday asking you why you are there. Their schedule and brain are wrapped up in too many things to properly protect your family’s legacy.
Myth 2: The bar association determines whether a lawyer can advertise that he or she is an “Elder Law Attorney” or “Estate Planner.”
The bar association does not determine whether a lawyer can advertise that the lawyer is an “Elder Law Attorney” or “Estate Planner.” There are no strict rules against advertising for cases with which you have little to no experience practicing.
Myth 3: If a lawyer advertises that he or she does estate planning, then the lawyer has experience with those types of cases.
Unfortunately, not all lawyers who claim they are elder law attorneys or that they do estate planning have actual experience administering and/or settling estate plans. If you are concerned about your attorney’s level of experience be sure to ask them about their background and the kinds of cases they have handled.
Myth 4: All lawyers carry legal malpractice insurance.
It is perfectly legal for a lawyer not to purchase legal malpractice insurance. Do not be afraid to ask your attorney if they have malpractice insurance.
Myth 5: No one needs a revocable living trust.
A revocable living trust is simply an estate planning tool like any other. There are
circumstances which dictate that a revocable living trust should be considered. It all depends on the type of assets you have and even the state in which you live. Unfortunately, many attorneys and financial planners say that no one should ever consider a revocable living trust.This is a great disservice to many clients can have an adverse effect if not detrimental financial impact to their estate and to their family members.
Myth 6: Everyone needs a revocable living trust.
It may seem odd that both needing and not needing a revocable trust are common elder law misconceptions but unfortunately, there is a lot of misinformation out there due to attorneys and financial planners making blanket statements about an individuals needs. There is a nationally known financial planner who tells everyone that they need a revocable living trust. As we said above, it depends on your state laws and the facts and circumstances of your situation. Remember to carefully consider all options before making any decisions.
Myth 7: A financial planner can set up a revocable living trust for you.
Although many financial planners claim they can help you set up a revocable living trust
for you, only an attorney can discuss the details and set up customized documents for you. If a financial planner says they can take care of it and you don’t even have to talk to an attorney, run for the hills! Most financial planners or insurance salesmen who offer this type of service are doing is trying to sell you annuities. This can result in inappropriate or unfunded trusts and while the planner or salesman may have good intentions, it is ultimately an unethical practice.
Myth 8: Online directors of lawyers are carefully screened for qualifications and a good place to find the right attorney.
Most internet directories are nothing more than another advertising media. These types of sites solicit lawyers for an “exclusive listing” as an elder law attorney or estate planning attorney in a particular city. The big check they mail to the directory is sometimes their only qualification. Remember Myth 3 – there are no strict rules when it comes to how a lawyer advertises themselves. Make sure you get references and ask the right questions.
Myth 9: The lawyer who writes the will has to probate the estate.
If you remember this statement alone it was worth reading this post.You do not have to go to the attorney who wrote the will to probate the estate. Sometimes, it can be helpful if the attorney knows the intimate details of the estate, family dynamics and the assets. It’s always a good idea to consider another lawyer if only to compare attorneys’ fees for probating the estate. Fees to vary greatly between firms. Lawyers only cover their costs for what they charge for wills or even give away ‘free’ wills in the hope that they’ll get a big payday when the estate is probated. A “reasonable fee”for probating a typical estate is usually between 3% to 7% of the probatable estate in Pennsylvania. On a $200,000 probatable estate, the maximum “reasonable attorney fee” would be about $9,750.
Myth 10: The final myth is that you can never leave assets for the benefit of a beneficiary who has special needs or receives governmental benefits.
Many families are afraid to leave assets for the benefit of a special needs child or grandchild because it will cause disqualification for governmental benefits. This is not true at all. A “special needs trust” will allow the “special needs” or disabled person to be supplemented by assets that you leave them without causing interference with governmental benefits.
To summarize, the best response to any of these myths is to ask questions and explore all of your options. If an attorney is cagey about answering a question or is immediately dismissive of an estate planning tool it might be a good idea to consult another attorney who will be more forthright and open about planning your estate.
We are always here to help you, so please feel free to contact us if you need assistance protecting your family’s legacy.