Estate planning attorneys provide legal assistance to clients in order to arrange for the efficient transfer of client wealth during life and following death. Estate planning attorneys may be called upon to draft wills, trusts, powers of attorney, health care directives, and prenuptial agreements, along with other planning documents.
Estate planners may also structure and prepare necessary documents relating to the creation, operation, and restructuring of closely-held family businesses. The responsibilities of these same attorneys could also include preparing, reviewing, and filing the appropriate income and wealth transfer tax returns. Estate planners may work in law firms, accounting firms, banks, trust companies, insurance companies, and brokerage firms.
This subject overview covers the main types of issues that estate planning attorneys might face and the necessary skills that estate planning attorneys will need to develop. Additionally, it reviews related subject matters that may benefit students seeking a career in estate planning. Finally, the subject overview offers several discussion points for students potentially seeking to pursue careers in estate planning as solo practitioners.
Main Areas of Practice
The “estate planning” label is often used as a shorthand description of a field that encompasses several different stages of wealth transfer during life and following death.
Clients regularly seek estate planning attorneys’ assistance to draft wills. A will is a document individuals create to determine who should receive their assets after they die. A common misconception is that estate plans are only for the wealthy or those who are elderly. This is not the case. While some clients will have significant financial portfolios, many do not.
The scope of a client’s financial portfolio impacts the content of the documents an attorney will have to draft. For small and moderate estates, attorneys will need to know how to draft basic wills to enable clients to provide for their survivors. Even for modest estates, however, unusual family situations and other considerations might require more elaborate estate plans.
Estate planning attorneys are often called upon to recommend alternative arrangements to minimize the amount of wealth that their clients pay to the government. The means to minimize such payments, however, can become increasingly complex with larger estates. As such, attorneys handling larger estates must have a thorough knowledge of tax law. The advanced tax courses listed on the accompanying pathway are meant for those who plan to handle larger estates in practice.
Regardless of the size of clients’ estates, estate planning attorneys may also have to create trusts. A trust is an arrangement that permits a third party to hold assets on behalf of one or more beneficiaries. The trusts may be created during lifetime transfers and testamentary transfers.
For clients with large estates, it is important for attorneys to understand the tax implications and potential benefits of trusts. For clients with more moderate assets, attorneys are most likely to be asked to create a trust when clients have minor children or a child with disabilities. In both circumstances, the clients want to provide for children whom the clients do not think can effectively manage the assets on their own.
Estate planning attorneys have several responsibilities after the death of a client. These responsibilities fall under the rubric of estate administration. They include advising and gathering the assets of the estate, paying the debts of the estate, and distributing the remaining assets of the estate after settling all outstanding debts.
Often, the most contentious of these three responsibilities is the distribution of the remaining assets. To distribute the assets, the attorney must be able to discern—based on the law and any controlling documents—which parties are entitled to parts of the estate and the amount, specifically, to which each party is entitled.
The practice of estate planning is largely transactional. Attorneys must develop competence drafting wills, trusts, and other types of documents. Standard forms and document templates are available through many sources, such as the internet and form books distributed at CLEs.
Estate planning, however, is not a form-based practice. Attorneys need to understand the type of information and terminology that go into these forms and documents. South Texas College of Law Houston offers many transactional skills classes; however, Administration of Estates & Guardianship provides students with specific drafting skills in the estate planning field, along with multiple sample documents.
Although the practice of estate planning is largely transactional, a small percentage of cases do require litigation to be resolved. This may happen when one or more of the parties contest the distribution of assets from an estate. Unsurprisingly, the likelihood that a party will contest the distribution of assets increases as the size of the estate increases. Litigation may also arise if the government challenges a federal gift or estate tax return.
Prospective estate planning attorneys who do not plan to focus their practices on large estates need not develop litigation expertise prior to graduation. There are attorneys and firms that do specialize in contested wills and tax controversies; however, attorneys do not commonly take on this specialty directly out of law school.
Moreover, even when one or more parties choose to contest the distribution of an estate’s assets, the case may never go to trial. Instead, the parties attempt to use alternative dispute resolution mechanisms to resolve the matter. As such, students pursuing a career in estate planning would benefit from ADR-related courses, such as Representation in Mediation.
Regardless of whether will contests make up none or a small percentage of an estate planning attorney’s portfolio, there are certain types of court filings with which estate planning attorneys must become familiar because they do come up regularly. Specifically, estate planning attorneys must be well-versed in motions practice because many probate matters are resolved in court upon the filing of motions. The particulars of an estate planning attorney’s motion practice are covered in Administration of Estates & Guardianship.
Estate planning attorneys should also understand the interviewing and investigation components necessary to ensure that the documents they are drafting accurately portray the client’s entire financial portfolio. For interviewing, attorneys should keep in mind that clients do not always understand the significance of all their financial obligations and debts, so it is up to the attorney to ask the questions necessary to flesh out the pertinent information. For investigation, estate planning attorneys must know the network of individuals that they might need to consult with to understand their clients’ financial platforms.
Particularly for larger estates, estate planning attorneys might have to work closely with clients’ accountants, life insurance agents, bankers, trust officers, and financial planners to craft an estate plan individually tailored to the particular client’s situation and circumstances.
Subjects Relevant to the Practice of Estate Planning
Estate planning often intersects with family law. In fact, many family lawyers are probate lawyers as well. Wills and probate require attorneys to know when the law characterizes property as marital and how marital assets get divided. For this reason, while prospective estate planning attorneys would benefit from the Family Law class offered at South Texas College of Law Houston, the subject matter of Marital Property & Homestead is particularly important.
As the above discussion makes clear, estate planning attorneys need to be familiar with tax law. At least for those who plan to represent wealthier clients, several advanced tax classes are advised.
An examination of federal estate, gift, and generation-skipping transfer taxes provides a foundation for proper tax planning for larger estates. For these clients, estate planning attorneys should know the fundamental principles of corporate taxation and the income tax treatment of partners and partnerships (including the taxation of limited liability companies and other entities treated as partnerships for income tax purposes). The advanced tax courses provide the prospective estate planner with the needed tools when planning and evaluating alternatives for a client’s closely-held business interests and investment assets.
Students, of course, will have a hard time understanding the tax treatment of business entities about which they are unfamiliar. For this reason, the accompanying pathway recommends coursework in Corporations and Agency & Partnership, particularly for those who plan to represent clients with larger estates.
Solo and Small Firm Practice
Estate planning is a particularly ripe area of law for students interested in setting up their own firms or working in small firms. This subject overview and the accompanying pathway are meant to serve as a guide to help students become as ready for practice as possible. Nevertheless, even students who do follow the curricular pathway for estate planning will likely face unfamiliar or challenging issues in practice.
For this reason, students interested in setting up a solo practice in estate planning would benefit from developing mentor relationships with more experienced attorneys. Cultivating these relationships prior to graduation would be advantageous. Students can do so by attending CLEs and other events and symposia related to estate planning. For additional information on setting up a solo practice, please consult the Solo & Small Firm Practice Subject Overview and Pathway.Top