Promise I’m not being nosy

Estate planning attorneys ask you a LOT of questions.  Some are very specific, personal, and may even strike you as a little invasive. 

The purpose of this article is to help you feel more at ease with the estate planning process by explaining why these questions are asked.

What You Can Generally Expect

Every attorney goes about their work a little differently, especially if they own their own firm. 

Broadly speaking, you can expect any firm or attorney to request information from you before, during, or shortly after an initial consultation.  It may be very brief or it can be extremely detailed. 

Initially, attorneys are gathering information to assure they are a good fit for your needs.  For example, if you are primarily interested in asset protection and you have over $5 million, an attorney that does not routinely do that type of work may refer you to another who has greater competency in that area. 

Attorneys, like you, the consumer, are also trying to determine if your personalities will mesh well together.  There is little point in wasting time if the attorney foresees conflict.

And, most importantly but probably easily overlooked on the consumer side, attorneys need enough information to ensure they do not have a conflict of interest.  Attorneys are bound by ethics rules that dictate who they are and are not allowed to represent. 

Once the attorney has enough information to determine they can take you on as a client, they will continue gathering information from you so that they can design an estate plan that meets your individual needs.  They may issue a formal recommendation explaining your options or plan, and they will review a first draft of the documents needed to put your plan into place.  Once the attorney is confident the drafts are in good order, there will be a formal signing ceremony to assure the documents in your plan are legally enforceable.

Now that you have a basic understanding of the process, here are brief explanations as to why certain types of information are requested.

Financial Information

Your financial profile includes anything and everything you own that has value or has a debt against it.  From income and government benefits, to your mortgage and coin collection.

Your attorney needs your complete financial profile in order to design a comprehensive plan, and to explain what your options are in relation to your goals.

For example, say your estate plan must address a child beneficiary that you know will blow through money if left to their own devices.  If your attorney doesn’t know that you have a giant IRA full of cash, the attorney has no opportunity to discuss what to do with that account.  And if you were to pass away without having addressed that issue, there’s a good chance that child will get the account and quickly deplete it.

Not only that, but forgotten assets may wind up needing to go through probate if there aren’t other mechanisms in place to capture them.

There is no amount of super-sleuthing an attorney can do to discover what you own when that information may very well only exist in your mind. 

Health Information

No, your attorney doesn’t need to know extensive information about your medical history or medical concerns. But there is one important caveat to bear in mind.

If your planning is prompted by an adverse health diagnosis, that is something your attorney needs to know. For example, if you received an Alzheimer’s diagnosis, or a potentially life-threatening cancer diagnosis.

Why?  First, attorneys have an ethical obligation to assure they are not contracting with anyone who lacks sufficient mental capacity to do so.  The capacity required to make a will is fairly low (at least when compared with other legal standards) because the law generally favors allowing people to decide what will happen to their estates upon death.   

But the other reason that I would argue is just as important is that understanding your health situation helps estate planning attorneys understand and plan around your goals.  Clients with immediate health concerns are likely focused on ways to avoid confusion and anguish about last wishes, while clients with longer-term issues are probably going to want a plan that addresses long-term care. 

Family and Personal Information

This to me is the big one.  Families are complicated.

One of the first things your attorney is going to do is construct your family tree.  They want to know who you are married to, whether you or spouse has been married and divorced before, how many children you have together, how many children from prior unions, whether any children or grandchildren have already passed away, and so forth.  Why?

First, in order to understand how best to plan for your assets your attorney will have to figure out who would naturally inherit your estate if you died without any estate plan at all, or if you died with an outdated estate plan still in effect.  They are then going to compare these potential outcomes with your stated goals. 

For example, if your goal is to leave your estate to your children which are from a previous marriage, they’re going to need to know if you’re currently married and if you have any other children with your current spouse, and whether any of the children involved here are minors.  If you have no will, your estate would generally go to your current spouse, and any minor children would be entitled to a minimum chunk of your estate for support.  All of this could either significantly reduce or totally eliminate any inheritance adult children from the first marriage would get.

Second, we need to understand your family tree to help explain who would naturally be favored to make financial and healthcare-related decisions if you were incapacitated. 

For example, say you are in a committed relationship but not married.  You are suddenly incapacitated by an accident.  If you don’t have power of attorney documents in place, the parent from whom you are estranged could wind up being appointed as your guardian.

As uncomfortable as it may be discussing personal relationships, bear in mind that once you’ve retained counsel, your communications are privileged.  What you discuss cannot be disclosed without your consent, subject only to rare exceptions.  And your attorney doesn’t need to know why you are estranged from family members.  In fact, it is probably best to avoid stating any reasons in your estate plan documents.  Doing so may only invite litigation. 

Estate planning attorneys don’t ask these questions because they are interested in juicy family gossip.  That is unprofessional, unethical, and frankly, unkind.  Attorneys have families, too, often just as complicated as anyone else’s. 

If you are working with an attorney and you feel they lack empathy for your circumstances or can’t adequately explain why they need certain information, know that you can continue to “shop” and find someone with whom you do feel comfortable. 

The Takeaway

Once you feel confident with your attorney, make sure you’re disclosing everything that could impact your plan. A good attorney will listen and respect your decisions while also offering and explaining your options.