FAQs

Transfer on Death Deeds and TOD beneficiary designations can be great tools when utilized properly, but they are definitely not an end-all-be-all solution for most people. This type of planning is extremely limited. You can generally only control the outcome if at least one of the named beneficiaries outlives you and there is very little by way of protections for minor or disabled beneficiaries. Also, there are often pitfalls to outright beneficiary designations that are not common knowledge, such as the disputes that often arise between siblings that co-own property together.

I recommend consulting with an estate planning lawyer regardless of what you have put in place yourself, even if you think you don’t have “enough” assets to worry about estate planning. You might be surprised at the things you did not even know to consider.

There are a lot of factors to consider when hiring an estate planning attorney. Here are a few you may want to consider:

• How long have they been practicing in this area of law?
• Wha percentage of their cases are estate planning/probate?
• Do they also have experience in probate court? Seeing how estate planning documents play out in the real world is an invaluable asset when it comes to drafting these documents.
• Do they have experience with the type of documents they are recommending to you? For example, if your plan addresses concerns related to Medicaid, are they very familiar with the Medicaid rules? If you think you may have a taxable estate, how extensive is the attorney’s tax knowledge?
• Does the attorney simply plug names and addresses into a form or are the documents customized to each client’s individual needs?
• What are their fees? Is it a flat fee or billed hourly? What is included? Are there additional costs or expenses?
• Can they explain the process and timeline in a way that you understand?
• Can they explain your options to your satisfaction or do you feel like they are pushing you towards a particular service?
• Do you get a good feeling from your conversation with the attorney? Do they seem knowledgeable/ethical? Keep in mind, a good lawyer may have to tell you things you don’t want to hear, but they should be able to do it in a way that shows you they know what they are talking about and will treat you with respect.
• Bonus points if they ask you a question you don’t know the answer to or that you hadn’t thought of before that conversation. This is a sign the attorney is thoroughly analyzing your needs.

Here are some red flags (in my opinion):

• They don’t ask you any questions before you hire. Every situation is different and the services I recommend and language I draft varies significantly from case to case.
• They utter the words “EVERYONE needs a trust” or “NO ONE needs a trust.” Estate planning solutions are not one-size-fits-all.
• You feel like you are being pressured or the attorney is talking down to you.
• You ask the attorney to explain a term or concept that is over your head and they refuse.
• You feel like they are talking down to you.
• They try to upsell you on estate tax planning when you are not and do not expect to become a multimillionaire (this is a Texas-specific red flag).
• They will not explain the documents or answer any questions before you sign.
• They do not let you review the documents before your signing appointment.
• They do not use a written contract when clients hire them. The services being provided and associated costs should ideally be in writing.

A Will and Revocable Living Trust can both establish who benefits from your estate and who is in charge. One main difference: a Will must generally be taken to court to be enforced and a Living Trust does not. Also, some third parties (banks, title companies) are more accepting of the authority of a Trustee than a Durable Power of Attorney agent. However, having a Living Trust is not a guarantee that the probate process will be avoided. Additionally, a Living Trust is not the only way to avoid probate court. The decision whether to do a WIll or Trust should be made with the advice of an experienced estate planning attorney who can explain the pros and cons of each option.

Transfer on Death Deeds and TOD beneficiary designations can be great tools when utilized properly, but they are definitely not an end-all-be-all solution for most people. This type of planning is extremely limited. You can generally only control the outcome if at least one of the named beneficiaries outlives you and there is very little by way of protections for minor or disabled beneficiaries. Also, there are often pitfalls to outright beneficiary designations that are not common knowledge, such as the disputes that often arise between siblings that co-own property together. I recommend consulting with an estate planning lawyer regardless of what you have put in place yourself, even if you think you don’t have “enough” assets to worry about estate planning. You might be surprised at the things you did not even know to consider.

There are a lot of factors to consider when hiring an estate planning attorney. Here are a few you may want to consider:

• How long have they been practicing in this area of law?
• Wha percentage of their cases are estate planning/probate?
• Do they also have experience in probate court? Seeing how estate planning documents play out in the real world is an invaluable asset when it comes to drafting these documents.
• Do they have experience with the type of documents they are recommending to you? For example, if your plan addresses concerns related to Medicaid, are they very familiar with the Medicaid rules? If you think you may have a taxable estate, how extensive is the attorney’s tax knowledge?
• Does the attorney simply plug names and addresses into a form or are the documents customized to each client’s individual needs?
• What are their fees? Is it a flat fee or billed hourly? What is included? Are there additional costs or expenses?
• Can they explain the process and timeline in a way that you understand?
• Can they explain your options to your satisfaction or do you feel like they are pushing you towards a particular service?
• Do you get a good feeling from your conversation with the attorney? Do they seem knowledgeable/ethical? Keep in mind, a good lawyer may have to tell you things you don’t want to hear, but they should be able to do it in a way that shows you they know what they are talking about and will treat you with respect.
• Bonus points if they ask you a question you don’t know the answer to or that you hadn’t thought of before that conversation. This is a sign the attorney is thoroughly analyzing your needs.

Here are some red flags (in my opinion):

• They don’t ask you any questions before you hire. Every situation is different and the services I recommend and language I draft varies significantly from case to case.
• They utter the words “EVERYONE needs a trust” or “NO ONE needs a trust.” Estate planning solutions are not one-size-fits-all.
• You feel like you are being pressured or the attorney is talking down to you.
• You ask the attorney to explain a term or concept that is over your head and they refuse.
• You feel like they are talking down to you.
• They try to upsell you on estate tax planning when you are not and do not expect to become a multimillionaire (this is a Texas-specific red flag).
• They will not explain the documents or answer any questions before you sign.
• They do not let you review the documents before your signing appointment.
• They do not use a written contract when clients hire them. The services being provided and associated costs should ideally be in writing.

A Will and Revocable Living Trust can both establish who benefits from your estate and who is in charge. One main difference: a Will must generally be taken to court to be enforced and a Living Trust does not. Also, some third parties (banks, title companies) are more accepting of the authority of a Trustee than a Durable Power of Attorney agent. However, having a Living Trust is not a guarantee that the probate process will be avoided. Additionally, a Living Trust is not the only way to avoid probate court. The decision whether to do a WIll or Trust should be made with the advice of an experienced estate planning attorney who can explain the pros and cons of each option.