If you’ve practiced estate law even for just a few years, you know every client is unique in some way. Each client has different types and amounts of assets, different family dynamics, and different attitudes. It’s these differences, and the opportunity to provide creative solutions, that keep estate planning careers, including my own these past 25 years, particularly interesting.
But despite these differences, it’s important and helpful to define a vetted process so you don’t miss anything. It can be tempting to shorten your process with certain clients, but in my experience approaching each client with the same degree of thoroughness is always worth it.
I’ve worked on this system for decades. It’s been through iteration after iteration, and I’ve collected all of the steps into an estate planning checklist below.
Here’s a short version of the list:
- Conduct the Initial Assessment
- Name a Price
- Give Them an Estate Planning Questionnaire
- Have the First Official Meeting
- Make a Detailed Memo of the Meeting
- Send an Engagement Agreement
- Prepare the Documents
- Send the Documents to Your Client
- Have an Interim Document Review Meeting
- Have a Signing Meeting
- Address Funding Matters
- Follow Up and Stay in Touch
I invite you to port this information into your own practice, adjust it to your workflow, and use it to help you be more efficient and effective.
1. Conduct the Initial Assessment
Most engagements will start with a prospective client reaching out to you, either by phone or email. If you aren’t set up for inbound referrals yet, make sure you’re not missing anything by reading “How to Start an Estate Planning Practice”.
If they email you, ask if they’re open to having a 10-minute call. It’s more personal and effective.
You might not be a professional salesperson, but you need to act like you have the answers and guide the prospect in the initial stage. They don’t need the technical details at this point — most clients want price, process, and the chance to get to know you.
If this is a referral from a business contact of yours, be sure to ask how they met and how long they know each other.
That common contact is your link to each other, be sure to talk about it. If this is a referral from another client of yours, same thing.
If the prospective estate client got your name from some other source, tell them a bit about yourself.
How long you’ve practiced. If you have a spouse or children, etc. Anything that will help your new client relate to you will help ensure you land the engagement and begin to build trust.
And trust is paramount. Your clients have to trust you before they’ll hire you, let alone follow your recommendations. Trust also relates to authority, which means less questioning and back-and-forth.
2. Name a Price
The client will want to know “how much it’s going to cost”, and you’ll need to know some details before you can give them a good faith estimate.
Before you name a quote, you’ll want to:
- Understand the nature and extent of assets and family dynamics.
- Get a rough list of assets and net worth.
- Ascertain the family situation and factor in that the appropriate estate documents, changes of ownership, and tax issues all affect how much time it will take for you to finish an estate plan.
Remember that finances are sensitive, and there is a lot of personal financial undressing.
Some clients may not be expecting it during an initial call, so give them a heads up that the personal questions are going to be coming in rapid-fire.
Almost all estate planning is quoted on a fixed fee, and the fixed fee includes the consultations and the documents. But there are supporting documents required in most engagements, and if the client needs a trust, you’ll need to address funding it.
Your goal is to define the entirety of your client’s needs and give your professional recommendation for how to go about it along with a quote.
Be sure to define the scope of the engagement and the additional costs for any extra items, what’s included and what is not included. Be prepared to explain why things cost what they do.
Some clients invariably believe “it’s all boilerplate” and you “just push a button on the computer” and burp out the forms.
Well, some of that is true, but meetings and calls take at least two or three hours, and every document must be reviewed, important provisions customized, and there are logistics in getting it signed. Not to mention the legal recommendations that may accompany a more complex estate.
3. Give Them an Estate Planning Checklist
If the client (and you) are a good fit, the next step is to have a formal meeting.
Be sure to give the client the option of meeting in person or via Zoom. But in my 25 years of practicing, I’ve found almost all new clients want to meet personally.
A unique thing about an estate planning engagement is that, in a sense, the client is hiring you to potentially help when they are gone. So they’ll want to size you up personally. That’s not easy to do on a zoom call, but people are different so give them the option.
You need a comprehensive but concise questionnaire to elicit all the necessary information to prepare the estate plan.
Ideally, you give them this checklist before your first official meeting, and you can go over it together the day of the meeting.
It takes a while for clients to answer all the questions. This might be the biggest stumbling block for most people who otherwise want to get their affairs in order.
So, while you need everything about the client to do your job, you don’t want to overwhelm them right out of the gate.
Set a tone with the client when you give them what amounts to a big homework assignment. Be sure to ask the client to “do your best” in completing it but very importantly remind them that you’ll review it together and if they’re not sure about anything, to “just leave it blank.”
I always tell clients that if any information or records are not easy to obtain, just jot down a note for us to talk about it. It’s your job to help them with each step and that starts from the very beginning. Just try to make them feel confident in their ability to tackle it.
4. Have the First Official Meeting
The goals of your first official meeting are:
- To review and complete the Estate Questionnaire;
- Identify heirs and relationships between heirs (look for relationship rifts);
- Discuss who will serve as power of attorney, executor, or trustee, and designate one or two backups; and
- Walk out with a complete picture of the client’s financial life.
Here’s a more specific breakdown:
- You should review and complete the Estate Questionnaire with the client at the beginning of each meeting. It is really important to be sure you have identified everything you need.
- Then identify the heirs and ask how they all get along. Whether there are any above-average rifts in the family. Try to pull out stories and take careful notes.
- You’ll need to know whose children are whose if there are prior marriages or children from prior relationships.
- You’ll need to know everyone’s investment aptitudes, if they are financially independent or have a history of blowing money.
- If any of the heirs are married, you need to ask if the marriages are solid, or if problems are looming large. Estate planning is about asset protection as much as anything, and part of that is identifying the stability of individuals in your client’s network.
- After you understand the assets and family, you need to discuss who is going to handle things when the client is no longer able. Discussing the Trustee and Power of Attorney is very important, maybe the most important decision the client (and you) will make. Make sure to think through a backup or two as well. Our article on Choosing the Right Trustee breaks all of that down if you want to dig a bit deeper into that topic.
- Identify anyone the client might take care of, other than children. Sometimes there is an elderly parent or grandparent, or a special needs sibling. If your client is relied upon in such a way, the estate plan you do for them will need to take that into consideration. Special Needs Planning is a field of its own and can be very rewarding. If you identify a need, be prepared to draft a separate trust document or bring in an independent expert.
- Take note of large concentrations of tax-deferred money, it will impact who the beneficiaries are — estate planning also has a lot to do with income tax planning.
- If they have a family cottage, you’ll want to learn more about it. Who uses it and takes care of it, and what the clients’ attitude is about keeping it in the family. There is also a wonderful book written by the late Stuart Hollander, Saving the Family Cottage. If this is an area of interest for you personally or professionally, be sure to eventually read it.
5. Make a Detailed Memo of the Meeting
After the meeting, immediately dictate a memo of all your thoughts and impressions and include any notes you took down. If you don’t have a secretary to type it up, consider using software to dictate it like Dragon Legal.
Or just type it up yourself. One way or another, be sure you have a complete summary of everything that was discussed while it is fresh in your mind.
6. Send an Engagement Agreement
An email regarding the terms, price, and scope may be sufficient, but a written and signed engagement letter is usually better.
It’s not about getting paid, uncollected receivables isn’t a prevalent problem with estate planning engagements. It’s about defining the scope of the engagement.
Be sure to clarify what you are doing for the client, and what you’re not responsible for. Funding is a big issue too if you are doing a Trust, be sure to clearly state you are (or are not) assisting with funding their Trust, if they have one.
Drawing a line about funding and the clients’ responsibility is critical. If the client has a business or mentioned a tax issue, be sure to specify that you’re just doing the estate plan, and if they want formal help with those items they have to engage you in writing.
And be sure the Agreement states that once the documents are signed, the engagement is terminated — that starts the malpractice statute clock ticking.
7. Prepare the Documents
First, review all your notes from the full meeting. And the client’s Estate Planning Questionnaire.
Identify a complete list of documents that will be required including the Last Will, Trust or Trusts, Powers of Attorney, Medical Advocate Forms, Deeds, Business Ownership Papers.
My advice is to do the drafting as soon as practical after the Initial Meeting. This ensures you don’t forget too much of the meeting before you dive in.
Then, re-review the documents a few days after the initial drafting so you place a fresh set of eyes on everything — just like a magazine or newspaper editor would.
If you don’t use software to assemble your documents, you really should. My office likes Fore!Trust and Wealth Counsel. You can also customize your own templates using Hotdocs — we’ve worked with Affinity Consulting out of Columbus, Ohio, too. They are the leading consultants and work with a ton of estate lawyers.
If you have any loose ends, email the clients for answers. Or drop them a line if you think they’re open to a phone call. That will help you build more rapport with them anyway since they’ll be able to see you are working on their “boilerplate” documents.
The fewer loose ends in the review stage, the more you can focus on the important stuff.
8. Send the Documents to Your Client for Review
It is critical the clients set their own eyes on the documents before coming to sign them.
I almost always send my clients a draft of the documents to review at their own pace and on their own time, but that can create a log jam, too.
To help mitigate that, I always instruct them to read specific pages of each document — just the pages that contain the fundamental information. Clients that wade into the administrative sections can become overwhelmed and frustrated, and that is the opposite frame of mind you are shooting for.
For my powers of attorney documents, I deliberately have all the terms they need to know in the first two pages.
For my trust agreement, I have everything in the first five or six. The easier you can format them so the clients only look at what you want them to look at, the better.
Most people want to review the documents on paper, so consider just mailing them. I’d also share a copy online using Dropbox or any other document sharing feature, but only send that as a PDF so the clients don’t mess with the document itself.
Finally, I always try to set the interim review meeting to discuss the drafts as soon as practical after sending the draft documents to the client. This way they don’t have the time to get lost in the details. And they just focus on what is really important.
9. Have the Interim Document Review Meeting
This is the meeting you have while the client is in the review phase. It’s your time to answer any questions that have come up and explain in a bit more detail what each document is doing.
I also like to give an example of what happens “if you don’t have this document.” Fear is a powerful motivator.
I like to open with a three-sentence overview of what each document really does and explain its purpose in a few words. Sometimes I put this content in my cover letter when I mail the draft documents as well.
Then I like to talk about the order of each fiduciary role. I give a real life example of how the document benefits the client/why they have it. This helps it feel more concrete.
Here are a few examples:
Financial Power of Attorney:
I’ll tell the client that “The Durable Power of Attorney is the document in which you give certain persons the authority to handle your financials affairs if you are not able (i.e. you have become incapacitated due to major health issues or an accident). This person is sometimes called a “Power of Attorney,” “Agent,” or “Attorney-In-Fact.”
Make sure you discuss the order of the Power of Attorney. I like to gather each person’s contact information for the file. Make sure the clients are still comfortable with the people they have chosen. I always describe a situation where there is no Power of Attorney document, and what it is like to have to go through the probate court. You need to remind them of the value proposition.
Medical Power of Attorney:
I’ll tell the client “Your Patient Advocate Designation gives certain persons the authority to make health care and end of life decisions if you are not able. This document is also sometimes known as a “Durable Power of Attorney for Health Care” or a “Living Will.” The person making these decisions for you is your “Patient Advocate.””
I always remind the client that it is best to have one person in charge. Clients don’t like having to choose one family member over another, although logically they’ll get the reasoning.
I also talk about requiring that the person who is given the primary power of attorney keep close family members informed and consult them before making decisions.
I am always sure to tell clients things like “Your Trust is not registered with any Court. It is strictly private. You are the Trustee (i.e. managers), Grantor (i.e. owners) and beneficiary (i.e. the trust is “yours” to do what you want with it). Generally speaking, you can change the terms of your trust anytime you want. The trust remains in your social security numbers, you do your taxes the same as always, and for all intent and purposes having the Trust really does not change anything for you during your lifetime. However, after you die the trust is irrevocable (unchangeable, technically) all of your money and property will remain in the trust and will be handled and distributed according to the terms of the trust.”
Pour Over Last Will:
In regards to the Will, I always tell clients if they have a Trust something like “Your Revocable Trust contains all the provisions for handling and distributing your property when you die. But to be effective, your assets have to be transferred to your Trust during your lifetimes.
Having a Will ensures that ultimately all of your property will be placed into your Trust after either of you die, even if you don’t fully fund your Trust during your lifetimes.
Your Personal Representative (Executor) is responsible for gathering and administering your assets that are not in your Trust when one of you dies, if necessary.
And if you have young children, you designate in your Will who takes care of them if you’re not around.”
10. Have a Signing Meeting
Assuming you’ve covered all the loose ends in the interim meeting/call and have reviewed the drafts with the clients ahead of time, you make the big picture the focus of your signing meeting.
After the clients sign the documents and you have them witnessed and notarized, be sure to scan a copy for your records.
Now is the time to talk about funding their trust if they have one, or just about updating beneficiary designations and getting things consolidated and in order.
You’ll want to talk about the logistics: where to store the documents, how their fiduciaries will get access when something happens, and what the process of updating estate documents looks like.
11. Tend to Funding Matters
Providing full-service assistance with funding matters is challenging. I provide a detailed funding letter with instructions and suggestions and often handle the deeds for real estate.
I’ve written a separate blog entitled Estate and Trust Funding if you want more details.
I do recommend helping clients out at least a little bit with funding, you’ll find it an excellent opportunity to network with their other pros.
Touching base with their financial advisor about change of ownership or updating the beneficiary forms is a good way to break the ice with them. Same with the accountant, if there are tax planning recommendations, say, in regards to their retirement accounts, you have the perfect excuse to reach out to him or her as well.
12. Follow up and Keep in Touch
- How will my family members know what to do when I am gone?
- Where should I keep all my important papers?
- Should I give copies of my documents to my power of attorney?
- What instructions should I leave my Trustee to handle my affairs?
- What if I lose my documents?
- How will my family know to contact you if anything unexpected happens to me?
Every engagement is different and will not follow exactly the same pattern and workflow. You need to be flexible, but be sure to consider each and every step above.
Most engagements will benefit if you use this methodology — it will keep you out of trouble and ensure your clients walk away with the confidence they hired the right lawyer!