Dear Michael: We have many questions regarding our estate plan. We've talked to our attorney but don't feel like he truly understands our situation. He wasn't raised in a farm background, so some of the questions we ask don't get good answers – how to handle machinery, grain and other assets we need to pass during our lifetime. If we talk to someone like you, can you give us advice as to how to handle things or do we still need to talk to an attorney? – Befuddled.
Dear Befuddled: Estate planning is something, as a term, is bantered about by anyone from banks, to financial planners to trust departments to CPA firms. When a company or individual professes to do estate planning, and advertises as such, normally you need to see what type of firm is making this offer to determine what their capability is in the estate planning field.
Banks and trust companies offer estate planning, but truly they can only offer you advice on how trusts work and how their services would fit into your planning options. CPA firms, especially larger ones, advertise they have an 'estate planning' specialist to answer questions regarding estate planning. Insurance companies and agents claim to do estate planning. Then again, the simple act of buying an insurance contract to protect your loved ones is, by it's very definition, estate planning. You're planning your estate so that upon your death, there'll be money there to meet any demands.
Ultimately, when you need to take your ideas and thoughts and put them into a legal document – a will, an irrevocable trust, a deed, etc. – you will need to go to an attorney to have these documents drafted.
There are two people who can do this for you – an attorney in fact, or licensed attorney, and, of course, yourself. There is no law against you deciding to write things out on a piece of paper and having it stand up in court as long as you followed all the guidelines – witnesses, notary, dated, etc. I always recommend going to an attorney for this drafting.
I, myself, am not an attorney nor do I do any drafting of any legal documents for any of my clients. I have never done this type of work for any of my clients in thirty-three years of practice as I am not legally licensed to do so.
If my clients pay me for counseling, and they decide they need legal paperwork drafted, they still have to hire an attorney to do this work for them or they may attempt to do this themselves (not recommended). When a client pays me a fee, this fee is not for any legal work – as I am not an attorney – and is solely for my help in defining how they came to be where they are in life, where they would like to be, and what happens to their stuff when they die.
I do not charge any fees that are then paid to an attorney, nor is any of my advice to be construed as legal advice in any sense of the word. Any fees charged by the attorney are not part of my fees.
I have to repeat this about every year – for the past thirty-three years – because a lot of people make 'assumptions' that I can provide the drafting of their documents. I cannot! Nor can your CPA, your bank, your trust department, or any other non-attorney entity which professes to do estate planning. These entities can all give you help as to what you want to put into your 'estate plan' but they cannot draft this plan for you. Only you or an attorney can legally draft these documents.
Where you get the information from regarding what you want in your estate plan is up to you. You can talk to your attorney, you can talk to your CPA, your banker, your trust department, your financial planner, the local Adult Farm Business Management, etc., etc. But only an attorney can draft the information you want encapsulated within a 'legal' document and only s/he can charge fees for doing so. No other entity can charge legal fees – including me – and pay those fees to the attorney later.
My job is simple. I listen to what people tell me about their lives, their history, how their farm business came to be, how it's progressed over the years, and, ultimately, where things are going to go in the future. The best estate planning I've ever seen is when you decide to move all of your assets during your lifetime via numerous methods so upon your death, you go out the same way you came in – without a penny to your name. Sometimes this is possible – sometimes it's not.
I make notes of our meetings, of questions you've asked me, items we've discussed – transfer of machinery, livestock, the farming operation, which kids are good, which ones have had an 'interesting' life so far, what you'd like to see done to protect your assets, when these assets will pass to someone else and under what terms, etc.. When you come to see me, I don't do your estate planning – you do! You just need to know the questions to ask yourself, and then you come up with your own plan. I just make notes while this plan is evolving and crystallizing in your head.
I ask questions about what you want to do – and that involves so much, much more than drafting a legal document. Once you feel like you've expressed yourself and I have encapsulated those feelings, desires and wishes into a summation of the notes of our discussions that would be presentable to an attorney, you take a copy of the notes to your meeting with your attorney for drafting and you pay him or her to draft it for you. Or I can send them to him or her and be available to answer any questions your attorney might have.
As per norm, none of the information discussed above is to be construed as legal advice nor acted upon in any legal situation without discussion with a licensed attorney. (Now required disclaimer).