For an interesting perspective, please read the article, How Much Do You Charge for a Simple Will? written by a colleague and reprinted with permission in our Articles of Interest.

For one thing, you must understand a Will becomes effective only upon your death. It governs nothing and cannot operate on any of your property before your death. Consequently, a Will provides no assistance or protection to you if you are still alive but incapacitated.

A Will only operates as to property which belongs to you when you die. Therefore, a Will - no matter how well-drafted - has no effect on many types of property you may have. For example, insurance policies, annuity contracts, joint tenancy assets, pay-on-death accounts, and any account having a beneficiary designation would not typically come under the operation of your Will.

Thus, an important aspect of drafting proper estate planning documents is not simply drafting the documents themselves, but consideration of the total effect of the documents. The estate planner must determine the nature and extent of your assets. He or she is not inquiring of you what you have, how much it is valued and whose name is on the property simply to gather information about you which will be used against you. For one thing, by dealing with an estate planning attorney, you are protected by the attorney-client privilege and by the attorney’s duty of complete confidentiality. The information is required so the documents prepared for you will work as you desire them to do. If you have a Will and also have a retirement plan with a beneficiary for the plan, you may or may not want the same persons to get the property under your Will and as a beneficiary of your retirement plan. Depending on your desires, the Will and retirement plan’s beneficiary designation may operate in conjunction with one another or separately from one another. The important thing will be to consider both in developing the estate plan.

Without sufficient information from you and without consideration of the totality of your circumstances, an attorney will not be able to provide competent service to you.

Suppose you have a Will which leaves your estate at your death to your three (3) children, in equal shares. Prior to your death, however, and somewhat in anticipation of incapacity and/or death, you decide to put the title to your home in joint tenancy with one of your children, the one who lives closest and who has been providing the most assistance to you. Thus, you felt that for convenience sake and in case something needed to be done regarding the property, the child could help you. You may very well have created a number of problems by making the change in ownership - e.g., income tax consequences, death tax consequences, and so forth. However, you have also created a problem with respect to your Will. Under your Will, at your death the estate was to have gone in equal shares to the three (3) children. Because your residence was titled in joint tenancy, which has at its essence a feature known as the automatic right of survivorship, the child whose name was on the title with you before death, becomes the sole owner of the property upon your death. Regardless of the provisions of your Will, the residence now passes outside of the Will. The new owner of the residence may, of course, choose to add his or her siblings onto the title, but there is no guarantee of this and there may be adverse tax and other consequences if he or she does so.

Thus, a good estate planning attorney will help you not only develop the documents you need but will also take the time to examine your property and the way you own the property (how it is titled), to make sure your goals are reached.

Traditionally, estate planning has concentrated on helping clients plan for their death and what will happen to the client’s estate, the assets. Of course, in addition to being concerned with one’s property, estate planners have also typically assisted in making sure that minor or dependent children have a guardian or conservator named, but even these actions usually only occurred under an estate plan at the death of the person making the plan. By contrast, today’s estate planner spends as much time, if not more time, looking at what will happen to the client if the client subsequently becomes incapacitated. This is why the distinct area of law known as Elder Law has come to prominence. The Elder Law attorney has a greater concern in developing an estate plan which provides not only complete planning for death, but just as complete planning for the incapacity of the client.

Certainly, many aspects exist to estate planning and what will constitute a complete estate plan for the particular client will depend on a great many factors. However, at a minimum, you should expect to see at least the following documents in an estate plan:

Will (if the client is also doing a revocable trust, the Will likely will be referred to as a “pourover” Will),

Revocable Trust (if the client wishes to avoid probate and to accomplish other goals),

Durable Power of Attorney for Finances, Power of Attorney for Health Care (or Advance Care Health Directive), and if the parties are married, they may also have a Community Property Agreement (or some sort of Property Agreement).