Julie Jason

1.  What is your experience and background in estate taxes and planning?  You are looking for 10 years of experience or more, unless you’re willing to have the lawyer learn on your nickel. 

2.  What types of clients do you normally work with?  Look for a lawyer with clients who have assets, situations, ages, and needs similar to yours.  A lawyer whose practice is built around hundreds of small clients will have a different focus than a lawyer who specializes in large estates. 

3. If you were referred by an adviser, ask about referral fees.  Simply ask: Are you paying a referral fee to the person who told me to call you?  You need to know, since you want to understand any potential conflicts of interest.  

4. Do you sell insurance?  Since insurance trusts need to be funded with life insurance policies, you need to know if the firm sells insurance directly or indirectly through an affiliate.  If the answer is yes, tell the lawyer that you won’t be buying insurance from him or her or anyone who would share commissions with the lawyer for a sale. 

5. How do you charge for estate planning?  What would you estimate the bill to be for my estate plan?  These are fair questions.  Expect straight answers.  Under Connecticut law, you are entitled to this information in writing. 

6. How do you charge for acting as counsel to an executor with an estate similar to mine?  The attorney should be able to provide you a few examples of cases he or she is working on at present. 

7. If you are representing spouses for estate planning and discover that the spouses have conflicting or divergent interests, how do you handle the situation?  You want to hear a logical response that gives you comfort about the lawyer’s ethics.  (This explanation should also be included in the engagement letter.)  Ask the lawyer to give a few examples.  For example, you might ask what the lawyer would do if he or she represents a married couple and the husband tells the lawyer to put a provision in his will that is not in his wife’s will.  (Usually a married couple’s wills are identical and reciprocal.)  

8. Have any provisions of your estate planning documents been challenged in court?  Some challenges come up because of contentious family situations.  Some are a result of thoughtlessness or poor drafting.  In either case, try to ascertain the reason for the challenges, and steer away from a lawyer who seems to be responsible for such challenges because of ineffectiveness in drafting estate planning documents. 

9. Have any of your tax planning techniques been challenged by the IRS?  If the answer is yes, explore further.  Aggressive tax planning techniques are not that uncommon, especially with estates over $25 million.  You need to be aware of whether the lawyer you are interviewing takes these types of risks and be sure to understand the potential costs of working with this lawyer.    

10. Do you act as trustee or executor in wills that you draft for your clients?  Some lawyers offer to serve as your trustee or executor, while others feel doing so creates an inherent conflict of interest.  Consider this:  if the lawyer drafting the trust also serves as trustee, how can the lawyer represent the beneficiaries in the event of a dispute? 

Because the lawyer serves his or her own interests when he or she files an accounting for the trust, the lawyer-trustee will normally want you to sign an acknowledgment that you understand the conflict.  If the lawyer acts as executor, what happens if the will he or she drafted contains ambiguities that are challenged?  What if the will he or she drafted is declared invalid? 

If you agree to the lawyer acting as a trustee or executor, both of which are fiduciary positions, be sure you get a letter from the lawyer explaining how he or she will handle the engagement and calculate the compensation for those services and for the services he or she provides as a lawyer.  In large complex situations, this agreement is best included in the will (or trust) itself.  In any situation (no matter how complicated or simple), if there is to be no or limited fiduciary compensation, that should be specified in the will (or trust). Silence means full compensation.