All Living Trusts Are the Same, Right?

One of the most common myths about estate planning is that all living trusts are the same.  I am told, “I already have a living trust.  I’m covered.”  However, after reviewing the living trust and other estate planning documents the client has, almost without fail, I identify several surprising problems the client was unaware of.  The biggest challenge to estate planning is procrastination.  The fact of human nature is to put it off.  Only second to this mistake, is the myth that all trusts are the same.  They are not.

MY PERSONAL EXPERIENCE – THE FAST FOOD LINE

I believed the same thing once upon a time.  Prior to becoming an attorney, my wife and I owned a successful company.  We met with a family friend, who was an estate planning attorney.  After a 30 minute initial meeting, we returned in a few days to sign our estate plan.  This signing meeting was about 15 minutes and we left believing we were in good shape.  If one of us died, the survivor of us would be protected.  Heaven forbid, if we both died, our young children would be financially set.  What was there to worry about?  And best of all, we felt we got a good deal.  Only $1,500 for the entire estate plan after he gave us a friends and family discount!  Who doesn’t love a great deal?  And that included a living trust too.

I was blissfully ignorant until, ironically, I became an attorney.  As life would have it, I ended up going to law school and changing careers after several entrepreneurial ventures.  I was shocked to learn that my 15 page living trust was garbage!  That great deal, turned out to be big mistake.  Don’t get me wrong.  It was better than nothing.  At least we named who would manage our estate and who would be the guardian of our children.  (Every parent of minor children MUST have a Will naming a guardian for their children!)

However, where I felt ripped off is that my attorney didn’t take the time to get to know our goals and the dynamics of our family.  In hindsight, it was more of a fast food order.  If I was to ever give Reader’s Digest tips on what do estate planning attorneys wish you knew about estate planning, one of them would be that most estate planners try to spend as little time as possible with you and give you the same form they give to all their clients.  I spent $1,500 for something that probably took less than an hour of his time.  Thirty minute consultation.  Fifteen minutes to replace the names on the forms.  Fifteen minutes for the signing meeting.  $1,500 per hour is lucrative.  The more time the estate planner spends with you, the less money they make.  Make sure the attorney takes the time to get to know you, your family and your goals.  If you do not understand what they are doing and why you need it, do not hire the attorney.  Did the estate planner explain each document and how it accomplishes your goals?  Did the estate planning attorney explain each important option and counsel with you as to what is best for you?

My estate planning attorney didn’t explain that there are multiple ways to determine whether my wife and I are unable to manage our financial affairs.  He simply decided two doctors.  Our attorney didn’t educate me that my trust should have an incapacity trustee if I can’t manage my affairs.  Why?  Because my trust didn’t even include one!  I had no idea why I needed a durable power of attorney or living will.  He didn’t include a HIPAA Release either.

Most importantly, he didn’t explain our options as to what will happen when the first spouse dies nor did he explain our options on how to give our children their inheritance.  He made all those decisions for us!  He also didn’t ask us about our doomsday clause or mention a trust protector.  (A doomsday clause is who receives your assets if all the loved ones you named are dead.)

Why didn’t he educate us?  First, it requires time.  And that means less money for him.  Second, his cookie-cutter trust form didn’t include multiple options.  It was like going to a fast food joint where everyone has the option of two menu items – Will or living trust. There are a myriad of ways to create a living trust or Will.  However, estate planners often hand out the same “meal” to everyone whether it fits you or not.

ESTATE PLANNING IS LIKE SURGERY AND A ROAD TRIP

Estate planning is complex.  There is a reason why lawyers go to law school.  The practice of law is very similar to the practice of medicine.  They require advanced degrees, licensure from a state board or organization and then continuous education courses every year to keep the license in good standing.  More importantly, like the medical field, the legal profession is more of an art than a science.  So ask yourself one very important question, can you afford to get your estate planning wrong?

The consequence of doing it wrong is not just financial.  Yes, what you have worked your entire life for and hope will benefit your loved ones may be wasted in a court battle.  However, that is simply money.  The true devastation is the impact on the lives of your loved ones.  Rather than be a blessing, something that will help your loved ones after you die, a poorly drafted estate plan is a curse that can devastate family relationships.  Accusations of unfairness, manipulation, and more can destroy the very people you intended to help.

So before you do your estate planning, ask yourself one very important question – would you operate on yourself or choose someone other than a licensed doctor practicing that area of medicine?  Of course not!  In fact, you would look for the best in your area because your life depends upon it.  Unfortunately, too many people do not consider the ramifications of their estate plan on the lives of their loved ones.  You should look for the best estate planning attorney in your area.  Definitely not an online or do-it-yourself downloadable trust.  If it was as easy as clicking a few buttons, do you think attorneys would need to go to law school?  Further, avoid trust mills.  A trust mill is a company that sells trusts like candy.  They typically do not have an attorney on staff.  If they do, ask why isn’t he or she working at a law firm?  Trust mills often sell financial services or other products too.  A trust mill provides a cookie-cutter trust that is just a cut above an online downloadable form.  They will replace the name of the prior client’s information, but in all respects you get the same trust form.

The fact is not all trusts are the same.  I wish it was as easy as car shopping.  It is easy to comparison shop vehicles.  Prices are easily marked.  Unfortunately, a trust is like surgery.  We can provide you a range of what it will cost, but unless it is a routine surgery, like a hernia repair, most surgeons do not know how long it will take until they open you up and discover what is inside.  Similarly, an attorney should provide you a range. If it is a flat fee, know that it is likely a cookie-cutter trust they are providing.

I have never had two clients with the exact same situation, goals and family dynamics.  Why should my clients get the exact same trust every time?  And why should every client pay the same amount?  A more simple trust should cost less than a complicated trust.

 It isn’t until I meet with a client that I get to figuratively open you up and look inside and learn about your goals, family dynamics, assets, etc. Until I know where you want to go, how can I tell you how much it will cost you to get there?  Again, if you asked someone how much gas you need for your road trip, could they give you the answer?  Of course not!  They have to ask, where are you going?  How many miles does it take to get there?  What is the gas mileage of your vehicle?  Will you have a load that may impact your gas mileage?  And so forth.  No one should be able to answer definitively how much something will cost unless they are giving you the same amount of gas as everyone else.  Whether you arrive at your desired destination is your problem, not their problem.  Why? Because you are dead and it is too late to fix your estate plan without going to court.

HOW YOU SHOULD BE TREATED

I treat every client like I wish I would have been treated by my estate planning attorney.  My approach is to meet with my clients for 60 – 90 minutes to learn about their family, their goals, the relationships of loved ones, their assets, etc.  I then educate my clients with the basics of a trust and how it all works together.  (I find too many people have no idea why they have a trust, a power of attorney, healthcare power of attorney, living will, and pour-over Will.  Would you by a car without knowing how it works and why you need it?)  I then go through about a dozen options they need to consider, educating my client to the advantages and disadvantages of each decision.  I counsel with them!  Attorneys are called counselors at law.

You are not buying a form, you are buying the experience and expertise of the attorney.

At the end of the initial consultation, I have designed a custom tailored estate plan that accomplishes my client’s goals and improves their loved ones’ lives and relationships.  Goals such as probate avoidance, family harmony, protecting the inheritance from the loved one’s creditors, bankruptcy, divorce or government aid programs.  Avoiding issues if the surviving spouse remarries.  Maintaining harmony between step-child and step-parent.  Helping single parents protect their child’s inheritance from the other biological parent.  As you can imagine, a whole host of issues–including what happens with pets!  What is wonderful about living trusts is that if you can imagine it, I can likely accomplish it.  There is very little that the law prevents us from doing.  So I push my client’s creativity and offer solutions to problems and identify their blind spots.  Many clients have exclaimed, “I have never thought of that!”  That is exactly why you need to hire an attorney who will take the time to give you a custom estate plan for you, not a cookie-cutter trust.  Will the cookie-cutter trust work for you?  We won’t know until you die.  And by then, let’s hope everything is done right because it is too late to fix.  (By the way, after the initial design meeting, I provide my clients a no obligation flat fee quote of how much the estate plan costs.)

In summary, no, not all trusts are the same.  It does matter who drafts your estate plan.  If you are thinking, “What does it matter, because  I will be dead?” It does matter – A LOT!  If you care enough to try to help your loved ones, care enough to do it right.  Otherwise, you are cursing your family rather than blessing them.

I have designed my estate planning practice with the client in mind, not my bottom line.  Because I have gone through the same experience of getting my estate plan, I want you to have what you need – not what is easiest for me.  Numerous clients have trusted me to review their existing estate plan.  When we conclude our initial consultation, dozens of clients have expressed that their original attorney never shared anything like what we discussed.  And that is where I sympathize with them.  I know the feeling of betrayal.

In addition to the initial consolation, I create a two to three page summary of the entire estate plan in plain English for my clients.  I believe you shouldn’t have to go to law school to know what in the world your attorney is doing for you.  I make it as simple as possible.  Don’t get me wrong.  Estate planning is complex.

Living trusts range from 60 pages up to 130 pages depending on the complexity. In addition to the summary of the entire estate plan, I also give my clients a trust summary which explains the important provisions of their trust.  My clients are always welcome to read every word of their estate plan.  However, many do not have that kind of time or want to do so.  The summaries simply and accurately detail the important parts of the plan.

At the signing meeting, I spend another 45 – 90 minutes with my clients.  I review the plan one more time.  It isn’t uncommon that a client changes his or her mind about a person they have named.  Not a problem.  I quickly fix it and we resume.  I want my clients to not only walk out of my office with the binder containing their estate plan, I want them to know what is in their estate plan.  After the signing meeting, my clients feel confident that what they have is custom tailored to their family and it achieves their goals.  And that is something money can’t buy – peace of mind.  Peace knowing that all will be well if you die.  Family harmony will remain.  Managing your assets will not involve the court or require additional attorney fees.  That your loved one’s inheritance will be protected from their creditors, bankruptcy, divorce or government aid programs. And a host of other common concerns.

Among the greatest gifts a parent can leave their posterity is not just money, but a love letter.  Call me sentimental.  Perhaps I am.  Both of my parents are deceased.  I know firsthand what I am talking about.  A custom tailored estate plan is a love letter.  It says, “Kids, I loved you enough to do it right.  I took care of you in life and now I am taking care of you in death.  I have made sure you won’t have problems now that I am gone.  Why?  Because I love you.”

If you have any questions about anything discussed in this article or any estate planning question, please contact me. I am happy to answer your questions.  My direct office number is 480 344-4059 or email me.  (There is an email link on my bio at: https://www.davismiles.com/attorney/w-john-skabelund/.  Publishing my email allows spam bots to pick it up.  Sorry for the inconvenience.)

Attorney W. John Skabelund practices estate planning, trust and estate litigation, business law and asset protection.  He has been married to the love of his life since 1996 and together, he and his wife have raised four amazing children.  If you would like to meet with him to discuss your estate plan or have him review your estate plan, please call 480 733-6800 today.