What the Probate Attorneys Don’t Want You to Know

basic estate planning last will and testament lawyer advice probate problems May 22, 2023
What the Probate Attorneys Don’t Want You to Know Attorney questioning in front of Last Will and Testament

I'm seeing more attorneys these days at least reference a revocable living trust when speaking with their clients if they are asked about estate planning options. However, it is still the norm if clients call up a law office and ask to get a Will done that attorneys will just go through the process of gathering enough information to do a Will-based estate plan. This means the client’s estate is going to end up in probate with costs of between four and ten percent, which also means there is a very good chance that family will contact the lawyer who drafted the Will afterwards to handle that lucrative probate work.

So why aren't attorneys talking that much about revocable living trusts? It’s actually two potential reasons. One, they don't really know and understand it because it's not what they do every day like. I am a planning attorney, and I do a lot of estate planning for my clients in addition to being a Certified Medicaid Planner™. This is the work that I do in and out, all day long. If an attorney is mainly handling divorces and they are asked by clients to do their estate plan, they can say “I can make a little extra money on the side for the firm if I just do simple documents like Wills.”

These attorneys won’t get into the more complicated area of working with revocable living trusts, avoiding probate, and asset protection without a lot of additional research and training. It would be unethical for them to try those types of legal planning without the right knowledge. And the simple fact is that they don’t have the time to devote to that because it takes away from their primary source of revenue, which is the divorce work.

The second reason is that actual estate attorneys who handle a lot of probate work make the vast majority of their money is when estates end up in probate. If that’s the case, then why counsel clients to take actions that will avoid providing the attorney with that future revenue? In their minds, the attorney is thinking that talking with their clients about revocable living trusts would be telling their clients “Here's how you can avoid having your estate pay me a lot of money in the future.”

Except it is the right and ethical thing to do in the best interests of the client. That’s why I make sure that my clients understand the options through my 70-page, Plain English book Estate Planning Basics, and that’s why we have it as required reading before we meet with clients in their Estate Strategy Session. We also now have audiobook and “read along” video versions of Estate Planning Basics available to provide this knowledge in different formats for people who prefer to learn through different types of media.

Putting together just the right estate plan can seem pretty intimidating with a lot of research involved if you don’t want to just “follow the crowd” to the probate office. However, just this basic information in an hour or so read can tell you what a lot of other attorneys can’t or won’t.

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