PART ONE: What Kind of Bag Would You Like Your Groceries in?
Almost daily, I will get a phone call from someone inquiring "Should I have a will or a trust"? And, of course, "How much do you charge for a will or trust"? Given the conflicting advice in the popular media and financial planning articles, I sympathize with the confusion people encounter when approaching the subject of estate planning.
The truth is I don't feel I charge for either a will or a trust. The question to me is analogous to the grocer asking after you make your purchases, "[w]ould you like paper or plastic?" Either way, you get the paper or plastic for free. It is what goes inside the paper or plastic for which you pay. The container is free.
It is generally true that in the two-decade debate that has raged over whether a will or trust better serves the needs of your client and your client's family, the trust-based plan seems to be winning out. Its advocates emphasize that a will-based administration is more time consuming, expensive, and unnecessarily public. The probate bar, including its judiciary, is quick to retort that probate courts place controls on attorneys' fees, thus creating downward pressure on administration costs to the benefit of the public. The due-process based notices and proceedings further insure protection of the interested parties' rights.
The contention of this article is that the debate of a "will versus a trust" misses the point of what is the proper estate planning model. While the above issues are important and need to be discussed with a client, whether your life's instructions are written on will paper or trust paper is ultimately not what counts.
PART TWO: Estate Planning--It's Not About the Documents
I recently heard a story: A lawyer was talking to the owner of a general store in a small southern town who proudly told him he had sold several hundred ceiling fans in one year. Realizing that in such a small town selling that many ceiling fans was quite an accomplishment; the lawyer asked the owner of the store his secret.
"It's simple," he said. "I just figured out how many people in this town wanted ceiling fans."
Thinking this savvy businessman must have developed a clever marketing plan to find and contact those select several hundred people that wanted these fans, the lawyer asked the obvious:
"Well, how many people in this town wanted ceiling fans?"
"None," the store owner replied. "What they wanted was to keep cool."
I have never met an estate-planning client who felt he or she needed a stack of papers to put in a cabinet. What I have found is many people need a certain unique and special peace of mind that only estate planning can afford.
Several years ago, Consumer Reports had an article about customer satisfaction among different professions. Can you guess what profession had the highest satisfaction rating among its participants?
Psychological counselors. The satisfaction rating was in the mid-80% range, and the more serious the psychological problem, the higher was the satisfaction rating from the experience. Is that a little surprising? After all, psychologists don't give clients any products or merchandise to take home with them. It's not like going shopping. The person walks out of the experience with no more material possessions than that with which they came. (Actually, they often walk out with a lot less!) There is something about the process of counseling that provided an intangible but extremely real benefit which made it the most satisfying profession for its clientele in the survey. The client came away empowered and more self-assured that "I'm back in control of things" or "life was going to work out the way I want it to".
Where do you suppose lawyers came in? Well, at least we weren't dead last, but satisfaction with the legal process was low. Some explanations given by the profession's defenders are that, after all, when people get involved in the legal system, there is a winner and a loser, so 50% of the people are going to be unhappy as a matter of course. In a settlement of a suit where both parties walk away grumbling a bit, everyone is dissatisfied at what they gave up.
But wait a minute. Are lawyers not supposed to be more than advocates for a given client's position? Are we also not supposed to be counselors? We are legal counselors. If counseling leads to such satisfaction, why are attorneys not at the top of the satisfaction list?
After practicing estate planning for two decades, I think I know the answer: Attorneys, even estate planning attorneys, generally don't counsel. They haven't been taught counseling. Medical doctors are supposed to keep people healthy. Although the profession is changing, many doctors I know acknowledge they learned no preventative medicine in medical school. They learned about diseases and how to cure them when they manifested. Preventative medicine was given little more than lip service.
PART THREE-- Outperforming Your Client's Laptop
When I went to law school, I was indoctrinated almost exclusively in the art of advocacy: how to fight for a client's rights after some problem had erupted. Counseling, on the other hand, is about preventing problems, but like physicians and preventative medicine, attorneys are simply not trained to do it.
So what do attorneys do when presented with a counseling opportunity such as that which estate planning requires? Not knowing how to counsel, they fall back on word processing. This fact is why I say the real issue is not whether your client paid money to have a trust or a will. If his or her stack of papers is a result of a word processing experience, the "estate plan" is designed to fail: The client came in for a certain kind of peace of mind and left with a stack of papers. Unless the attorney took the time to listen to the client's hopes, fears, wishes and dreams concerning his or her disability, family, and world, the content of those papers almost certainly will not be responsive to the client's needs. They can't be. The computer can not know your client's human concerns. In fact, it can't know anything. And the lawyer, if locked into the classic paradigm taught back in law school, will not take the time to find them out nor to learn how to respond to them.
I learned this lesson early in my career: A local bank gave me a fill-in-the-blanks document to use for a client. The form, however, did not suit the client's situation in a certain critical respect. Troubled, I called the bank trust officer and suggested that the language be changed to address better the client's needs. I was informed that as a new attorney I should not be "monkeying around" with the bank's forms, which bank, after all, was going to serve as Trustee. I was further advised that the bank's committee had not met in a while, so he advised I adhere to the last approved version of the form.
It was then I began to realize something was wrong with what some people called "estate planning". It was relegated to the domain of office machines that were as stupid as they were incredibly fast at processing data. But estate planning, like the practice of law itself, is supposed to be about counseling, not data entry.
Human beings have a unique relationship triad between 1) themselves, 2) their money, and 3) the people and values they hold dear. So important is the interrelationship of these variables, most people are strongly attached to their desire of how that relation of self, money and the objects of one's bounty will play itself out--even, remarkably, after death. Presumably, no other species' members on the planet think about the welfare of anyone or anything beyond their own demise.
I have counseled hundreds of wealthy people who are miserable--as well as hundreds who are happy and contribute much love and beneficial capital to their community. I have also counseled people of much more modest resources and have found they, too, range from the delightful to the depressed, the kind-hearted to the hardly kind.
I have also learned that much of that happiness or misery comes from the unique dynamics of this triadic relationship with which people are dealing every day. There is no other profession that is devoted to this relationship. And there is no other profession that can so profoundly impact it because no other profession has the tools to do so. Because of the adversarial model in which we were indoctrinated, however, the attorney needs to seek out these tools largely on her own--through counseling-based estate planning literature, national estate planning organizations based on this paradigm, and networking with like-minded practitioners. And then the attorney needs extensive practice using these tools to develop a counseling skill set.
A second--and emerging--dimension in estate planning is the very personal issue of a client's relationship with his or own disability. This new area is so important, it has taken on a term of its own--elder law.
As renowned estate planning attorney Robert Espterti points out, consider the lengthy instructions one leaves for a baby sitter before a night on the town. How personalized and detailed, therefore, should the instructions be that a client leaves his or her loved ones regarding how the client wishes to live out the remainder of life during disability? (Most people leave no instructions at all.) How does the client balance maintenance of his or her quality of life with the preservation of assets for the client's loved ones? Careful listening and detailed planning can help to achieve that balance.
The great personal satisfaction the practice of law affords me is to experience the peace of mind that a client feels after the counseling process is complete.
At the end of the process, the client usually walks out of the door with a portfolio of several hundred pages of documents. It is important to realize, however, that successful estate planning means those documents are the epiphenomena of a relationship between a client who shared knowledge about his or her values and family and an attorney who creatively applied the law to protect those values and people important to the client.
It is this counseling-based process which makes the documents worth the paper they are printed on.
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