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• Should I use an online tool to create my Will/Trust?

Many DIY providers can make adequate documents, but it's not just about the documents. The documents should reflect a carefully designed plan and the DIY solutions don't do that careful design part. They just offer a basic solution that kinda fits most people. It's like selling only size large tshirts - most people could probably wear it, but doesn't mean it's the right fit. So you can get a good outcome or a bad outcome with DIY. The problem is you don't know.

DIY is imperfect, but so are many lawyers. Documents from lawyers can produce good outcomes or bad outcomes. I have encountered more problems from lawyers than from DIY solutions. Using a lawyer isn't 100% guaranteed to be perfect, just as DIY isn't 100% guaranteed to be a disaster.

Modern DIY solutions have improved significantly from pre-printed forms, static templates, and one-size-only offerings. Some of the offerings today rival the output you'll receive from lawyers who also rely on form generation software (but without the actual legal guidance involved). Some are trash. You likely can't tell the difference, though you likely can't tell the difference between a good lawyer and a bad lawyer who presents well.

The biggest issue is that you don't know what you don't know. You don't know if you've missed an issue because you didn't think of it, you don't know if something you wrote is unclear, you don't know if you didn't fill it out correctly, etc. Hiring an estate planning attorney means someone is ensuring that everything is done correctly. Another mod disagrees with me, and I respect that, but personally, I believe nobody is better off paying an online provider for a DIY estate plan - if your situation is so simple a DIY is sufficient, then you probably don't need a Will so there's no need to spend money on one, and if your situation requires you to have a Will then it's probably more complicated than DIY can handle.

Do not DIY a Trust. There is no such thing as a "basic" Trust or a "simple" trust, no matter what you read online. Furthermore, the documents are only half the package. Trust Funding is just as important, but not only that, the guidance and recommendations from an experienced attorney are far more important.

Also, the best reason to hire an attorney is that (a) they're less likely to make a mistake, and (b) if they do make a mistake, their malpractice insurance can make you whole.

• My Financial Advisor is offering to do estate planning for me.

Don't do this, ever. At best, they can simply fill in blank forms for you.

If your financial advisor is providing any kind of legal advice, and is not admitted to practice law in your state, they are violating the law; depending on the state that's either a misdemeanor or a felony. I don't know about you, but I don't want to trust my money or my estate with someone who so casually breaks the law.

More importantly, would you trust your car mechanic to provide a medical diagnosis? These are completely unrelated skills.

Additionally, there are certain protections that you get working with an attorney that you don't get from a financial advisor. Attorney-client privilege, a fiduciary duty, and, if things go wrong, malpractice insurance.

• What about using AI?

At a bare minimum, from start to finish an estate plan involves:

1. figuring out what the plan should be.
2. getting the information to put into the documents (e.g. names)
3. drafting the documents
4. signing documents
5. post-signing wrap-up. Things like recording deeds, changing owner and/or beneficiaries of financial accounts, etc.

#4 in many states needs to be done physically, and even in states where it can be done, still requires human involvement, no way around that, sorry.

#2 and #5 are the same whether you use AI (e.g. Claude) or an attorney. Your experience might vary based on the individual attorney or AI that you use, and that is important, but conceptually that part is the same. Used correctly, an AI can be just as good as an attorney.

#1 AI is only as good as its prompts, and you don't know what you don't know. A good attorney will ask you questions you might never have thought of, and see if there's something you haven't considered that might be important for you. If you're not aware of something, you won't be able to add it to your prompt. Just as importantly, AI won't talk you out of doing something you shouldn't be doing, and might not caution you about potential issues.

#3 is the other one where we see issues. AI might miss important clauses, include clauses that shouldn't be there, might use ambiguous language, out-of-date forms, things not applicable to your state, etc. The quality I've seen is... not good. I've had clients ask AI to review my documents, and come back with revisions that would cause problems - including one that would have resulted in significant unnecessary taxes.

the problem isn't that AI can create something that's good enough, it's just that you don't know if it's right, or if it just looks right.

• What is estate planning?

Estate planning is preparing for the inevitable - determining who will take care of you if you become incapacitated, who will get your stuff when you pass away, as well as when or how they get it. The key components of an estate plan are:

- Healthcare authorizations, so that if you become incapable of making your own medical decisions, someone else can make those decisions for you. Closely related are end-of-life decisions, which may be in the same document, or a separate document.

- Power of Attorney, so that if you need help managing your financial affairs, someone can act on your behalf

- Will or Trust, to determine who will receive your assets after you pass away

- Probate avoidance devises, such as transfer on death deeds or beneficiary designations

- Funeral Authorization, to establish who is in charge for decisions regarding your final disposition

- Guardianship paperwork for any minor children

• What happens if I don't have an estate plan?

Then the state's default rules kick in. For some people that's fine, but others may not like the results.

- healthcare: nobody can make a decision on your behalf without a court order allowing them to do so. That's an expensive undertaking, and the person the court appoints may not be the one you would want. More importantly, the decisions they can make will be limited, particularly where end-of-life is concerned (i.e. the ability to "pull the plug")

- power of attorney: nobody is authorized to access your bank account, learn about your mortgage payments, etc. Again, they'll need a court order, again it might not be who you want, and that person will probably need to report to the court on a regular basis

- funeral authorization: I once saw a brother and sister in court over a year whether to bury or cremate their mother while the body remained on ice.

- guardian: do you want the court deciding who should raise your children?

- assets: this varies by state. [SOMEONE FILL IN THE GENERAL RULES FOR COMMUNITY PROPERTY]. In states that do not have community property, generally speaking if there are separate children and a surviving spouse, half will go to the surviving spouse and half will be split among the children. If there's no separate children, in many states it'll all go to the surviving spouse, but in some states the surviving spouse only gets half even if there are no separate children. If there's no surviving spouse, the assets will be split among the surviving children. If any child predeceases, then the descendants of those predeceased children will receive a portion, but the way that's calculated depends on the states. If there's no spouse or descendants, typically the parents will inherit, or if none, siblings or their descendants. It can get messy and go to more distant relatives.

If you're ok with the state's default laws, you do not need a Will (or any of the other documents).

• What is probate?

Probate is a court-supervised process to transfer assets from someone who is gone to someone who is alive. While state law varies in the execution, the purpose of probate is to ensure the assets of the decedent go to the right people. The process involves gathering all the assets, paying off any valid debts, and distributing the rest of the funds to the appropriate people.

In some states probate is generally simple and fairly quick, in other states, probate is more complicated and takes longer. What really makes a probate complicated are (a) unknown heirs, (b) minor children as heirs, (c) disabled heirs, (d) complex assets, (e) uncooperative heirs, and (f) disputes.

To clarify: the legal definition of probate is the process by which a Will is proved (declared valid) but colloquially refers to the court supervised process of administering an estate. All estates need to be administered, but not all estates require court supervision.

• Does a Will avoid probate? or Do I need a Will?

A Will does not avoid probate, it is merely instructions to the court regarding what you want. Without a Will, your assets will be distributed according to state law. With a Will, your assets will be distributed to the people/organizations that you choose. Same goes for who will administer your estate.

• The Will made X the Executor who is now telling us who gets what

First and foremost, X is not the executor unless and until the court has approved the Will and has issued official paperwork stating that they're the Executor.

Often that means that property will sometimes sit, unused and unusable, for a period of time after someone has passed away.

Even after someone is appointed Executor, the Executor does not get to decide who gets what - that's determined by the Will and/or by State Law.

If you think X is not suited for the position, you can object to them being the Executor, and propose an alternative. That can drive up the cost of administration, and can also lead to strained family relationships.

• How Long Does Probate Take?

How tall is a person? There's no single answer. Probate involves (1) petitioning the court, (2) having an executor/administrator/personal representative appointed, (3) gathering all the assets together, (4) paying any valid debts, (5) maybe disputing or litigating various claims, (6) maybe dealing with tax matters, and (6) distributing assets.

How smooth that goes depends on (1) how fast the court process goes, (2) how simple/complex the assets and liabilities are, (3) how effective the executor and their legal counsel are, (4) whether there's any disputes, and (5) whether tax authorities are involved.

I don't know a single state where the creditor claim period is less than 3 months, so if the Executor doesn't want that kind of liability, even with instant turnaround times, it won't be less than that. More realistically, I would expect simple estates without any issues to be resolved in 6-24 months. But if the assets are complex, if there's litigation, or just if people die during administration, the process can run for years, sometimes decades.

The longest probate on record, that of William Jennens, in England, wasn't fully resolved until 117 years after his death. Wellington Burt had a clause in his Will that delayed payout until 92 years after his passing. It took 87 years before Daniel Clark's probate was finally resolved.

• What is a Trust?

At its simplest, a trust is where a person (Settlor/Grantor) gives assets to a person (Trustee) to hold and manage for the benefit of another person (Beneficiary).

Some ways to look at it:

1. When you open a bank account, you trust them to hold on to your money, but it's still your money
2. When you send mail, you trust the post office to deliver your letter to the intended recipient
3. Giving a teacher an asthma inhaler or an EpiPen to be administered to a child as needed

There are many types of trusts, and names are not always consistent. There are generally three categories of Trusts:

- Testamentary Trust is created under your Will, it does not come into existence until you pass away. Simplest example: When I die my assets will go to my children, but until they turn 18, the assets will be managed by my sister.

- Revocable Trust is a Trust you create today, and you can make any changes at any time. The primary purpose of a revocable trust is to avoid probate. Typically, at the time of creation, the Grantor is also the Trustee and the Beneficiary.

- Irrevocable Trust is a Trust you create today, but you are limited in what you can change later.

There are many kinds of irrevocable Trust, and they can be created for many different purposes.

Note that while assets in a Trust typically (but not necessarily) avoid probate, that doesn't mean there won't be litigation, and while Trust administration usually happens without court supervision, that doesn't mean it'll necessarily be quicker. The issues that can cause delays in administration or contentious litigation don't disappear just because there's a Trust.

• Should I add my child's name to the deed

Adding someone's name to a deed isn't just symbolic - it's an actual transfer of an ownership interest in the property to that person. So it's a gift of the value of that interest, which SHOULD be accompanied by an appraisal of the property, another valuation done to determine the value of the fractional interest transferred, and likely a gift tax return filed to report the gift.

This can impact other planning done, for higher net worth people (there are some still out there who will pay estate and/or gift tax), actions like this can impact their overall estate plan and possibly increase the estate/gift taxes owed.

You have now exposed the ENTIRE property to the risk that your child would have creditors (divorce - soon-to-be-ex-spouse, business risks, etc.) and that their claims could take property away from you. This is generally not a desired outcome.

There may be state-specific issues related to property tax.

Your child will not inherit the property from you, which can have serious tax repercussions - particularly as your child will receive your tax basis, and will not receive a step-up.

• Will my child pay tax on inherited property / what is a Step-Up in basis? / What is Capital Gains

On a federal level, there's no estate tax or inheritance tax if your assets are below $15 million, and a married couple can combine their exemptions, which gets it to $30 million.

There also typically won't be capital gains.

If you buy property for $100,000, and sell it for $150,000, you made $50,000 profit, and need to pay capital gains tax (if owned for more than 1 year). More precisely, you're taxed on the difference between the net sale price (after deducting costs), and your Tax Basis, which is called your Gain.

Tax Basis is typically what you paid for the property, plus adjustments. If you bought the property for $100,000 and put in a new kitchen for $20,000, your tax basis becomes $120,000. Rental property can be depreciated, which lowers your taxable income every year, but also lowers your tax basis.

If you sell your primary residence (meaning you lived there for 2 of the last 5 years), you are not taxed on the first $250,000 of Gain, and if you're married, you can double that to $500,000. So if a married couple bought property for $100,000 and sells it for $650,000, there's $550,000 of gain, but only $50,000 is taxable.

If you give property away, whoever receives it takes over your tax basis - can't avoid tax just by giving property away. Plus, the recipient doesn't get the principal residence exclusion until they've lived there for 2+ years.

If you inherit property, through a Will, intestacy, through a Transfer-on-Death deed, a life estate deed, a ladybird deed, community property (in those 9 states), or through some trusts (especially revocable trusts and Medicaid trusts) you get a "step-up" in basis, meaning that your tax basis is the date of death value (or up to 6 months later).

That means that if you sell the property right away, there's no capital gains tax. Or if you hold it for a few years, you're taxed on the difference between the sale price and the date of death value, not the original purchase price.

• Can someone with diminished capacity (Alzheimer's, dementia, etc.) make a Will or a Trust?

Someone can have dementia or diminished capacity and still have testamentary capacity.  For example, someone with sundowners might have periods where they’re sharp and lucid, and during that time they can make their wishes known and execute legal documents.

While we should not assist when someone is taking advantage, it is not our job to refuse to help a client.  If someone has capacity to sign, and it is. Or clear there being taken advantage of, we should do as the client asks.  It is up to the person challenging the will/trust to prove that the client didn’t actually want to make those changes.

Unlike many other states, in Florida if a natural heir (eg a child) claims undue influence, it is up to the proponent of a Will to prove there was no undue influence.

In Florida, there is a seminal case, estate of carpenter (1971) that lists the main hallmarks of undue influence. A lot of articles have been written about the Carpenter Factors, as they’re now known, particularly by the Florida Bar. Those articles might explain why some factors could just be the sign of a helpful child, or might add additional concerns, etc.

I was initially going to title this “how to select an attorney” but realized that there are no hard rules and making a definitive statement does a disservice to either those who are excluded, or those who select the wrong attorney based on this guide.  I have known attorneys who provide estate planning services in rural areas, large cities, and everything in between, from solo practitioners to the largest of law firms, and thought I’d share my thoughts.  I will gladly state that you can get great service from a solo and horrible service from a major law firm.  So this guide is more to provide information than anything else.

This is a work in progress, and is open to suggestions.

1. Specialization

The single most important aspect of your attorney should be their specialization.  Quite simply, a jack-of-all-trades attorney is unlikely to have an in-depth knowledge of all topics.  An attorney who happens to do Wills on the side probably doesn’t know much about estate planning, such as whether or not a trust may be appropriate.  I had one divorce attorney ask me why I always had a Will notarized when the statute only required two witnesses (quick answer: so that the Will is presumed valid without the need for the witnesses to swear in court that they saw the decedent sign the Will).  While there are exceptions, I generally would not recommend getting an estate plan from someone who doesn’t predominantly specialize in estate planning.

There are also sub-specialties in estate planning.  Going forward, I’m going to refer to estate attorneys, unless I’m referring to a particular sub-specialty.  Broadly speaking, the main subspecialties are:

(a) middle-market planning, which often revolves around avoiding probate and ensuring a smooth transition, but often also includes long-term care planning, knowledge of special needs, etc.

(b) probate and administration, meaning they mostly specialize in the busywork that happens when people die - getting the executor/administrator appointed, transferring assets, stuff like that. 

(c) elder law, which more broadly deals with issues faced by seniors.  This includes Medicaid planning and probate avoidance, but also deals with benefits, guardianships, and a whole host of other corollary issues that many other practitioners don’t deal with regularly.

(d) special needs.  This tends to blend in with elder law, as special needs people and seniors tend to face a lot of similar issues.  Depending on the practice and the clients, this may be a lot more hands-on than elder law.

(e) tax / high net worth.  This generally means people worth tens of millions (lower in some states), who may face millions upon millions in death taxes.  These attorneys know all the funky acronyms you may come across, and are able to figure out which ones to use for which client.

(f) private client / family office.  A private client attorney is more like a general counsel of a wealthy family.  It doesn’t just cover estate planning, but anything that the wealthy family may need, such as preparing a lease, purchasing a jet, finding the best DIU attorney in the vacation resort where their wayward child got arrested. 

(g) litigation.  These people are who you reach out to when there is a serious dispute – such as when you’re trying to invalidate a Will or enforce a Trust.

(h) The transitioning attorney.  This is someone who doesn’t really specialize in estates, but is trying to make the transition.  There are generally two kinds, the recent graduate (or recently unemployed) who can’t find a job, and starts to do simple Wills for their friends and family and tries to make a living with it, and the somewhat older attorney, often divorce or criminal law, who thinks it’ll be an easier lifestyle because they can make their own schedule rather than have to deal with court deadlines and the like.  Some of these attorneys put in a lot of work and study to learn the specialty and can be better than attorneys who’ve been doing estates for years, but a lot of them don’t really know what they’re doing and don’t even know what they don’t know.

(i) the dabbler. This is an attorney who doesn't specialize in estates, but does it on the side. Someone who mostly does family law, or business, or whatever, and occasionally does Wills for clients because he/she thinks it's easy. This attorney doesn't know what they don't know, and should be avoided. Don't even think of using someone who only does the occasional Will on the side - if you're lucky it's just a waste of money, but they might miss a whole lot of things they don't know they should ask about, or they may do things incorrectly and set you up for much higher expenses later. Somewhat related to this are out-of-state attorneys who don't know the laws in your state, and I've seen a lot of problems because of that, including invalid documents.

Keep in mind that while an attorney often has one, or maybe two, sub-specialties, the attorney may still be knowledgeable in other areas.  As an easy example, I don’t specialize in special needs, but I am capable of preparing special needs trusts, and have done quite a few, but only if it’s pre-planning planning for while the parent/donor is still alive and capable; for more immediate needs or in-depth administration, I defer to the experts. 

That also means that many attorneys will state that they do some or all of the above, even if they barely do any X. While the title or practice description at the law firm may be an indication (e.g. private client, wills & estates), that’s not necessarily reflective of the actual specialization. The most important thing is that they know their limits - and stick with it.

Word of Caution

Beware the multi-practice attorney. The multi-practice attorney does a lot of different things, so they may do divorce and real estate and personal injury and basic Wills. I've thought long and hard about this and I don't want to be too harsh; you've got some very clever attorneys who can juggle multiple practice areas and be decent at each, but they're unlikely to master each one. It's a lot more common (and a lot more acceptable) in rural areas where there just isn't enough density for specialization; there are parts of this country where it's a 3-hour drive to a town with 10,000 people, and it's really hard for an attorney to support themselves doing only one thing. As long as they know their limits that's fine. Meaning they know what they don't know and will tell clients when to seek out someone with more knowledge.

Alternative 'Solutions;. Today it's mostly websites selling estate planning solutions, but you can buy a Will template from Staples. I don't recommend this. Usually, the documents are flimsy and bare bones, some of them are quite bad, but that's not what the big issue, the real concern is that there's no guidance. You don't know what you don't know, and a lot of mistakes get made with these. Quite often the documents aren't executed right, people pick the wrong forms, select the wrong options, don't choose their words carefully, and it leads to all kinds of mess. Ask any attorney in this field, we get paid a lot of money to fix the mess created by the online services. But maybe that's just Survivor Bias, and we only see the ones that don't work properly. In the end, my personal view is that you're not paying an estate planning attorney for their documents, but for their advice and so that it's done right.

Related to this are non-attorneys who offer estate planning. Some financial advisors and accounts say they do estate planning. That's not entirely accurate. Estate planning by an accountant or a financial advisor only focuses on part of the picture, and from a limited point of view. It's not uncommon for advisors to work together, and it's great when we can coordinate our different parts with each other. But I've come across such professionals that want to dictate to the attorney what to do, which is not good, there's also professionals who try to undermine the other professionals, which can cause issues, and worse, I've come across professionals who make it appear that you don't need an attorney (or other professional), which is even more problematic. It's great when advisors work together, as long as they all "stay in their lane" - and that goes for the attorney too. I might give a financial advisor my thoughts and ideas, but that's about it, because they're the financial professional, and I only have a surface level of knowledge.

2. Size of Firm.

The largest law firms, with hundreds of attorneys, if they do estate law, tend to have the wealthiest clients, and charge accordingly.  There may be a particular focus on private client / family office, and tax planning for high net worth.

Beyond that, the size of the law firm only tells you the size of the law firm.  Not only that, the size of the department is more important.  A firm with 50-200 attorneys may only have 2-3 who do anything with estates, or it could have a sizeable department of 5-15 attorneys with that specialty.  It’s really no different than a boutique law firm, except that the larger firm gets to keep their clients in-house.

A boutique with 5-20 estate attorneys, including a much larger firm with an estate department that size tends to cater to the middle class and the moderately affluent.  It’s not unusual for a firm like that to have a handful of high net worth or private client, particularly if it’s part of a much larger firm, but you can probably count those clients with your fingers.  These firms are most likely to do a lot of advertising, including seminars – that may or may not be a bad thing (See below).

A solo or small shop runs the gamut – it could be a boutique specialist who has plenty of high net worth clients, such as when the specialist works with some of the major law firms that don’t have their own estate attorneys, or it could be someone who stepped away from a larger firm for lifestyle reasons.  There are also solos/small shops who weren’t able to find a job and just fell into estate planning, or who were previously a different kind of attorney and wanted to transition for an easier lifestyle.  However, when dealing with a solo attorney, and particularly a very old attorney, you might want to ask if the attorney has a plan in place for any sensitive papers that the attorney may hold on to.

3. Location.

The location of the lawyer does not dictate the ability, but it may be an indicator of the typical cases the clients see. 

Rural counties: An attorney in a small rural county is a lot more likely to see the type of clients who live in small rural counties.  Not all rural counties are alike, and so neither are rural attorneys.  While the majority of rural attorneys are generally dealing with many smaller estates, there are also rural attorneys who regularly deal with multi-million dollar estates.  Particularly the kind of multi-millionaires you may see in such areas, such as wealthy farmers, oil & mineral rights, etc.  For example, there are attorneys in more rural areas who specialize in farm succession planning, which very few “big city” attorneys would understand.  That being said, there’s often a limit to the size of the estate local attorneys should be handling, mainly due to the volume.  As such, it’s unlikely that a rural attorney has significant experience with ultra-high net worth planning. 

The largest law firms tend to only be in the largest cities, with over 2/3 of the lawyers in the 200 largest law firms being in just 5 cities, and 7/8^th in the 10 largest cities.  Some of those law firms may also have a presence in a smaller location, which may provide access to the larger firm’s expertise.  Beyond that, large cities have all kinds of attorney, from those scraping by, to very respectable boutiques, to mega law firms.

There are still sizeable and deeply experienced firms in somewhat smaller cities.  If the population of the greater metropolitan area is 500,000+, there will probably be two or three boutiques with sufficient knowledge to handle all but the largest estates, but whose main bread and butter is typically more retail clients.  There are also a few more affluent areas where you’ll get a much larger number, such as Naples, Florida, which can rival even the largest cities for the number of high-end practices you’ll find there. 

Suburbs of major cities are in many respects similar to midsize cities, in that you can find some fairly large and knowledgeable boutiques, but there’s also a larger likelihood of specialization.  For example, mid-size firm in a very affluent suburb may have enough clients to only do high net worth.

3B. Multi-Jurisdictional / Different States

The attorney must be licensed in the applicable state. Typically, your attorney should be licensed in your state. It is illegal for an attorney who is not licensed in your state to advise you on estate planning matters in your state or to draft documents for your state.

Some attorneys will take on out-of-state clients to help with out-of-state matters even if the attorney is not licensed in that state. An attorney may even say that another attorney in their firm is licensed in your state, so therefore they can advise you and prepare documents for you. That is illegal in many states, and in some states even a felony - an attorney can't just borrow another attorney's license, the attorney licensed in your state should be part of the process from start to finish. Do not work with an attorney who is not licensed in the state for which the attorney is preparing documents.

It's ok for your local attorney to give general advice on issues pertaining to other states, and for many states there is a safe harbor, so that if you seek a local attorney to advise you on your estate planning, and as part thereof some documents are prepared for another state, that might be ok, as long as the work in/for the other state is secondary to the estate plan in your home state. If you spend significant time in two states (e.g. summers up north, winters down south), you should ideally have an attorney admitted in both states, or otherwise two separate attorneys.

It's also ok to seek an out-of-state attorney for advice on federal matters (e.g. tax); any attorney can advise anyone in the country on federal matters. The out-of-state attorney should not advise you on local law, and may need to bring in a local attorney to review anything related to the state.

4. You get what you pay for – or maybe not?

Quite often people ask what a reasonable fee is, and there’s no straight answer, but there are some rough guides.  While you’d generally expect higher prices in larger cities, that’s not necessarily true.  The sole attorney in a rural area might be so busy that they can charge higher prices, while someone in a more working class part of a larger metropolitan area might be a lot cheaper because there’s a lot of competition.

That being said, if it’s a relatively simple revocable trust package (without add-ons and bells or whistles), the price should range from about $2500 to $7500 anywhere in the country (things that cost more include medicaid planning, special needs, asset protection, tax planning, business succession, etc.).  Any less would be very concerning, because even the most simple estate plan will take several hours – to meet with you to determine your actual needs, to prepare the documents*, to review the drafts, again to meet with you to explain your documents and to sign them. 

If it’s within that range, don’t make the mistake of thinking more expensive is better – I’ve seen expensive attorneys who are mediocre, and I’ve seen excellent attorneys who charge less.  It mostly has to do with their network and the volume of clients they get. 

If someone charges more than that, hopefully it’s because there’s a good reason, such as a more complicated plan or a more demanding client.  Again, that range is for a relatively simple revocable trust, but keep in mind that there’s a lot of things that could make a trust more complicated. 

*it’s not just filling in blanks on templates.  While ideally a lot of the text is pre-written/standardized, that doesn’t mean every client’s work is the same – it’s adding or removing clauses or entire sections based on the client’s particular situation.  Maybe 75% of the document is the same for 75% of the clients, but there’s still a lot of variation – at least, if it’s customized to the client.

5. Marketing

Let’s start off with a “Trust Mill”.  This is a derogatory term for a business that follows a very specific pattern: send marketing to a targeted population, invite them to a seminar (possibly with a free meal), give a presentation about estate planning, and sign up as many clients as possible.  It’s a business, and there are pseudo-franchises where any attorney can pay a fee and they’ll essentially have it all done for them.  Trust mills get a bad name because it’s mostly one-size-fits-all planning.  Think of going to five guys, in-n-out, or shake shack.  Everyone’s getting a burger, but you can choose your toppings.

It's not fair to say all trust mills suck, and they’re not all alike.  Some are run by very dumb attorneys, or those who drank the cool-aid, and try to fit every peg into the same square hole, whether or not it fits.  Some are run by very good attorneys who are very knowledgeable, and it’s just a way to get clients. 

Some attorneys get clients through word of mouth, others through advertising.  Some attorneys spend a lot of time writing or speaking to get their name out there.  Some attorneys donate significant money to charities so they can sit on the board and network.   Advertising doesn’t make someone a worse attorney (or a better attorney).  It’s just a way for people to find the attorney.  Think about your own situation – how are you going to find an attorney? 

But that being said, the way an attorney gets clients tells you something about the typical clients the attorney gets.  An attorney who gets all their clients at the country club typically has a lot of country-club type of clients (i.e. high net worth and private client).  An attorney who gets all their clients by hanging around senior centers is more likely to do elder law.  An attorney who does a lot of seminars is more likely to be targeting the middle class.  An attorney who goes on reddit to post about estate planning probably loves their job a little too much.

6. Awards, Certification, Group Membership

Awards are worthless.  A lot of awards are “pay to play”, meaning the awards make money off the attorneys who they give the award to.  It doesn’t matter if they say something like “only 10% of attorneys qualify” or something like that.  Even if it’s not “pay to play”, it’s still a popularity contest.  Even the most reputable awards are barely more than a seal of approval – I know a Chambers (most prestigious) ranked attorney at a major law firm who uses documents that are hand-me-downs from 50+ years ago, and whose knowledge of trusts seems to be stuck in the '90s.  All awards are worthless.

Certifications are either private organizations or state-run. If it's a private organization, I'd take it with a grain of salt. There are a lot of accreditations and certifications, and some are barely more than a paid plaque. I'm looking at one right now for which the requirements are less than I need to maintain my license to practice. So yeah, I could pay for a certificate so I can tell the world that I show "a high level of professionalism", or I could just be a good attorney. If it's a state run program, it's probably a good indication; the Florida Bar Board Certification is a rigorous program and I know very experienced practitioners who've failed the test. It'll certainly tell you that the attorney can pass the test, but it won't tell you if the attorney has empathy or creativity. A lack of certification doesn't mean the attorney isn't as good as someone who does have certification.

There are also professional organizations, and the qualify varies. Most groups/organizations, just about anyone willing to pay the fee can join, and the only thing membership in the organization tells you is that the attorney pays to be a member of the organization, while some groups may require a few years of practice and/or a few classes. The most prestigious and restrictive group, ACTEC, only tells you that the attorney was able to jump through the hoops needed to join; I know an ACTEC member that uses garbage documents that includes references to sections of the tax code that were repealed more than a decade ago and I can teach a class on how bad they are. To the extent you want to make sure an attorney is dedicated to their craft, in addition to ACTEC (American College of Trust and Estate Counsel), NAELA (National Academy of Elder Law Attorneys) is a good group for elder law, and SNA (Special Needs Alliance) is predominantly a support network for attorneys who specialize in special needs.

7. Materials

The quality of the paper, binder, etc. says nothing about the quality of the attorney. I've seen comments about how fancy binders are only for crappy trust mills. Personally, I provide a premium service for a premium price, so I like to give a top notch presentation. I've done high end tax planning that cost $50,000 or more, a sturdy binder costs less than $50. It actually irks me that there are some very high-end firms that print on the cheapest paper available and just stick documents in a plain envelope - I take pride in my work, and I want my work to look like I care.

8. What should I look for?

Here’s the question everyone probably wants answered.  I can’t give a perfect answer, just my opinion.  What you want is empathy, knowledge, and clarity.

First and foremost, how the attorney makes you feel is important.  If you feel like you’re not getting their full attention, or that they’re rushing you, or pushing you into something you don’t understand, walk away.  An estate attorney once told me “I sell peace of mind”, that the attorney’s job is to make sure the client feels like they’re in good hands and will be taken care of. 

Second, you want an attorney who has sufficient knowledge to know what they’re doing – and more importantly, to know what they can’t do.  The attorney doesn’t need to be an expert on everything, if you have a $500,000 home and a few hundred thousand in retirement funds, you don’t need someone who knows the estate tax through and through.  What you do want is that if you ask, for example, about going into the nursing home, that the attorney can give you a good overview of the requirements for Medicaid – even if they can’t do the application themselves.  More importantly, you want an attorney who’s not afraid to tell you they can’t do something and will refer you to someone who can.

Third, you want an attorney who can communicate clearly with you.  You don’t need to be an expert in estates, but the attorney should be able to explain to you the issues that matter to you in a way that you can understand it and explain how the proposed estate plan addresses those issues. 

Last, you want an attorney who asks questions.  If a client comes to me and says they need a trust, I always ask why they think they need it.  An attorney who just does whatever the client asks for is not a good attorney - we’re sometimes called counselors, because it’s our job to counsel clients, not just to fill out some forms.  As an easy example, you can (probably) go online and find a standard document to appoint a healthcare agent for your state, but it’s the attorney’s job to explain to you why it’s a really bad idea to appoint two co-agents.

Bonus: Trust Funding / Post-Planning Guidance

Often, signing your documents doesn't mean your estate planning is finished, there's usually a few things left to do. Even if you're just getting a simple Will you should still name the beneficiaries on bank accounts, retirement accounts, insurance policies, etc. Your attorney should provide you with instructions.

Trust funding takes a bit more work, as assets need to be transferred into the trust. At the retail level*, the client is doing most of the work - your attorney can't go into your bank and drain your bank account. 20 years ago, your attorney could call your financial institutions and obtain the blank forms, but today it's hard to get the forms if you're not the account holder, so even if we wanted to do it all for you, we still can't do so without your help. Some attorneys will provide assistance (such as filling out forms) as part of the flat fee, others charge an additional fee for that, and it's not unreasonable because the time it takes varies significantly - some people need no assistance at all, others take many hours. At the very least, the attorney should provide written instructions on what you should do - that's the bare minimum, an attorney who doesn't even do should be avoided.

*if you have a personal banker, you know your insurance agent, etc., they'll often help get the forms and may help you fill out the forms. Just like with attorneys, I've noticed a lot of variability in how knowledgeable other professionals may be, and how willing they are to help. I had one client with private banking accounts at two different branches of the same bank, one did everything for the client, filled out the forms, made all the arrangements, etc., the other only provided blank forms and told the client to fill them out and figure it out. I've been shocked by how little some professionals know, and how unwilling they are to pick up the phone and call their main office for support. At the same time, some professionals I've dealt with were absolute experts who knew more about the legal aspects than many attorneys, and who would go the extra mile for their clients just because that's who they are.