Finding the right estate planning attorney to meet your financial interests can be daunting. Despite the importance of careful financial planning, no one enjoys thinking about their ultimate demise and how to best pass along their property and possessions.
It may be tempting to allow the Pennsylvania probate court to decide how best to administer your estate. However, avoiding difficult estate planning decisions now will only pass them along to your surviving loved ones. Find the right estate planning attorney by asking these 7 questions.
What is the Most Important Decision in Estate Planning?
Choosing an executor is arguably the most important decision in estate planning. The executor of your estate will carry out your final wishes after death, sort out finances, and make sure assets are distributed to beneficiaries properly.
The executor of a trust or will is a complex and heavily involved job. In most cases, handling an estate’s affairs will last several months. Choosing the best individual can be overwhelming.
What Does an Executor Do?
The executor of an estate has several duties and responsibilities. Generally, an executor must:
- Decide whether or not the estate must go to probate court
- Determine who the beneficiaries are and how the estate should be administered
- Manage the deceased’s assets until they are distributed
- Carry out the wishes of the deceased (e.g., letter of instruction, final will)
- Evaluate all assets
- Pay off debts and taxes
- Decide whether to sell real estate or securities
- Notify necessary government entities and other organizations of the death
- Carry out the day-to-day affairs until the estate is settled (e.g., pay mortgage, utilities, terminate credit cards)
- Oversee the administering of property, possessions, and other assets to beneficiaries
The role of the executor is critical for an estate to be handled properly.
Who Can be an Executor of an Estate?
Deciding who will be the executor of an estate should not be taken lightly. Also, years can pass between drafting an estate plan and death. Even with periodic updates, it may be a good idea to name a second or third person as a contingency plan.
Spouses, civil partners, and children are often chosen to be executors of an estate. Any named beneficiary can be named executor. However, it should be noted that any former felon or minor child cannot be named executor.
If a minor child is named executor, they cannot apply for probate until their 18th birthday. In addition, two executors are required if the named executor is a minor and a beneficiary. A person can name up to 4 executors.
An executor of an estate will need to be familiar with numerous legal and financial matters to effectively handle your debts and administer your assets upon death. Some individuals prefer to have a professional act as their executor. Financial institutions, accountants, and attorneys are frequently hired to act as executors.
A professional executor can benefit the handling your affairs in a number of ways, including:
- Helping mediate disputes between beneficiaries
- Familiar with the complexities of estate and probate law
- Relieves burdens of surviving family members
- Ensures impartiality during the process
The executor of an estate is legally responsible for any errors during the long and tedious process. Having a professional executor or co-executor can help protect your estate and shield your surviving family members from liabilities.
What Factors Should be Considered When Choosing an Executor?
While the legal criteria for becoming an executor is minimal, other qualities should be considered when choosing an executor or multiple executors.
- Honesty and integrity
- Organized and responsible
- Good communication skills
- Detail oriented
- In good financial standing
Executors must be responsible enough to address estate matters quickly and communicate with heirs. They also must be good with personal finances. The court may not allow an executor if they have a history of bankruptcies, no credit history, or if they have liens and levies against them.
2. What Will Happen During the Initial Consultation?
When choosing an estate planning attorney, it is a good idea to meet with a few potential firms before deciding. Estate planning is complex and typically involves multiple meetings, approval of drafting documents, and finalizations.
Generally, when a lawyer offers a free initial consultation, the meeting is meant to help you decide whether or not they are a good fit for the role. Rarely will an attorney give valuable information in a free consultation.
A paid consultation should be more than a meet-and-greet. While it is important that you and your attorney should get along, let the first meeting be educational. Discuss what steps should be taken to ensure your financial and legal affairs. Know the costs upfront to avoid any surprises.
3. What Are the Most Common Estate Planning Mistakes?
Common mistakes in estate planning are easily prevented by working with the right attorney. Estate planning lawyers know the questions to ask to make sure your wishes and goals are fulfilled in the most efficient way.
Estate planning mistakes can range from failing to minimize the Pennsylvania inheritance tax to failing to name a guardian for minor children:
Not Preparing a Living Will Or Trust
One of the biggest mistakes in estate planning is financial procrastination. Leaving your surviving family members without a clear plan, living will, or trust ensures your estate will have to go through a lengthy probate court process. The state will decide how to pay your debts and how your assets and possessions will be distributed.
Failing To Protect Assets
Estate plans are designed to protect your assets for your beneficiaries. Using the wrong estate planning tools can lead to several costly problems, including:
- Failing to protect assets from unnecessary taxation
- Failing to keep an estate out of probate
- Creating avoidable disputes that lead to probate litigation
- Failing to consider spousal rights
Using inappropriate estate planning mechanisms can prove far costlier than allowing the state to handle your affairs.
Not Designating Beneficiaries or Updating Beneficiaries
Families change and grow over time. When an estate plan fails to update its beneficiaries, it can lead to disputes over inheritance.
For example, suppose a person designates their first child and spouse as beneficiaries and fails to update their plan for decades. During that time, the person has two more children, a divorce, and remarries with additional children from their new spouse.
The other children may feel entitled to some inheritance. In addition, the current spouse may feel entitled to a portion of the estate over the first spouse. Without a clear plan, probate can drag on for years.
Failing To Name Guardians for Young Children
Minor children need stability. In the event of an untimely death of both parents, a guardian will need to step in to care for the children, or else they may be given to the state. Naming a guardian is critical to the well-being of young children.
Not Including Medical Directives
In the event of your incapacitation, a medical directive is critical. A medical directive can list your wishes should you be put on life support, suffer a coma or the late stages of dementia. A medical power of attorney appoints a person to be able to make medical decisions about your health and your estate.
Failing To Structure a Plan That Minimizes Estate Taxes
As mentioned above, the right estate planning tools can be used to minimize the inheritance tax. In addition, the transfer of property and assets may be subject to other types of taxes if the plan or trust is improperly set up.
For example, property acquisition may be subject to income tax or gift tax, depending on how the asset is transferred.
Using The Wrong Power of Attorney
Using the wrong power of attorney can lead to significant consequences. Some power of attorney (POA) documents are enacted immediately after signing. Other POAs are only enacted when you become mentally incapacitated or pass. It is important to discuss your needs and potential situations to decide the best POA for your needs.
4. Do You Charge a Flat Estate Planning Fee or Bill by the Hour?
When choosing the right estate planning attorney for your goals, carefully consider costs and the complexities of your situation. For example, if you have a sizable estate or a range of complicated matters to be addressed, it is in your best interest to choose an experienced firm that can customize an estate plan. Conversely, if your estate is very small with only a few beneficiaries, a tailor-made plan may not be necessary.
Some estate planning attorneys bill their clients by the hour. The rate can vary between larger and smaller law firms. In addition, the attorney’s expertise, training, and experience will be a factor.
Other estate planning attorneys may offer a flat fee for drafting certain documents. The same flat fee may not apply to every client. For example, an attorney may charge large estates one type of flat fee and smaller estates a lower flat fee. Other estate planning lawyers may charge flat fees per document.
Every financial situation and family has different needs. Consulting with a few estate planning attorneys before making the decision can help guide you to the right fee structure.
5. Can Your Firm Create a Comprehensive Estate Plan Tailored to Clients?
Be sure to ask if your estate planning attorney can meet your needs. Individuals and families may need multiple types of trusts, wills, and life insurance plans to meet their goals. Having an experienced lawyer explain the various nuances of estate planning tools and guide you to the ones that best suit your needs is critical.
6. Will Your Firm Name Itself as Executor or Trustee?
There is a potential conflict of interest for an estate planning attorney to both draft your important documents and serve as executor. While it can be a very good idea to have a lawyer serve as executor or co-executor of your estate, it is an ethical dilemma for the drafting attorney to administer the property and assets.
7. Will Your Firm Conduct Periodic Reviews of My Legal Documents?
Estate plans can be tailor-made for your financial interests. However, your financial and legal affairs change over time. It is critical that your estate planning documents undergo regular review to stay current.
Ask if the estate planning fees include regular review of your legal documents. It is also a good idea to ask what the costs are for changing and adjusting your documents through the years.
Contact a skilled and experienced estate planning attorney today to discuss the details of your needs.
Contact PA Estate Planning Attorney Kenneth C. Russell for more information
Want more info on estate planning? Ready to plan an estate contact Russell Law today.