Introducing ‘The Estate Department’

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Here at Modern Loss, we get a lot of reader questions pertaining to wills, trusts, and all the other legalese that can drive you batshit crazy in the already complicated aftermath of a loss. So we finally decided to do something about it.

Enter Liza Hanks, an attorney with a passion for making legal concepts clear and accessible to everyone (a.k.a., a unicorn). In our new column why, yes, we love the name of it too! she’ll provide easy-to-understand explanations that should empower you to ask informed questions of your own lawyer, or point you in the right direction to learn more.

Got a specific question for Liza? Email hello@modernloss.com with the subject line “Estate Department” and it may just show up on the site.

 

What is the best way to find a good estate lawyer for my needs? And how do I know their rate is fair?

Here’s my advice for finding a good estate planning lawyer.

1. Start with referrals. Ask your friends, your neighbors, colleagues, and anyone you like and respect if they’ve done an estate plan yet. If they have, ask them if they liked the person that they worked with. You might start hearing the same name from several sources; that’s a good sign.

2. Do some research. Once you get a few names, see if those lawyers have websites (most do). Take a look at the websites to find out the following things:

  • What kind of information does the attorney provide about estate planning? Is there helpful, easy-to-understand information there on estate planning? How does it make you feel? (If it makes you feel afraid, or stupid, keep looking.)
  • What kind of information does the attorney provide about his or her services? Can you figure out how that lawyer charges for services? By the hour? Or with a flat fee? Either one can be perfectly transparent and fair, but sometimes attorneys hide the ball here and require you to come in for an “introductory meeting” to find out the basics. I don’t like that approach – it forces you to come in to attorney offices just to get basic consumer information.
  • How much can you find out about the attorney’s credentials and experience? Can you tell how many years of experience an attorney has, where they went to law school, whether they have any additional credentials, offer any specialized expertise, and specialize in estate planning? There are great estate planners who didn’t go to fancy law schools, and awful estate planners who did. There are also really great estate planners who aren’t certified specialists in estate planning, trust administration, and probate—not all states even offer such a specialization. Still, anyone that you want to work with should at least be open and clear about where they went to school, how long they’ve been in business, and whether they specialize in estate planning. You want to work with someone who specializes in estate planning, not someone who dabbles in it.

3. Make contact. If you want to find out more about an attorney after checking out their website call or email them. Trust your gut instincts here: If you don’t like the way a person answers the phone (or doesn’t even answer the phone), or if they don’t return your messages, you probably won’t like working with this particular attorney.

The number one reason clients tell me why they aren’t working with the attorney who originally drafted their documents is that they felt condescended to, disrespected, or stupid when they asked questions.

4. Ask questions. There are two reasons to ask questions. First, pay attention to how your questions are answered. Do you feel listened to? Do you feel that your questions are being answered respectfully and honestly? The number one reason clients tell me why they aren’t working with the attorney who originally drafted their documents is that they felt condescended to, disrespected, or stupid when they asked questions. There’s no excuse for this: You should understand your estate plan. Period. If you don’t, your lawyer isn’t doing a good job. The second reason to ask questions, of course, is to get answers.

Here are some good questions to ask:

  • How much will it cost to create an estate plan? Costs vary, but generally, an estate plan that uses a living trust costs about 10 hours of a lawyer’s time; a will about half of that. So, if lawyers charge $300/hour where you live, expect a living trust plan to cost about $3,000; a will based plan to cost about $1,500. If a lawyer tells you that they can’t predict what your plan might cost, be skeptical. Most plans fall within that 10-12 hour scope, and most lawyers know that. Beware of people who charge by the hour and aren’t willing to provide you with an estimate of total time unless you have a large estate or a very complicated set of issues to deal with.
  • What does an estate plan include? A plan should include a will, a durable power of attorney, and an advance health care directive. If you want to do a living trust, that, too. If you are doing a trust, does the cost include the transfer of your house to the trust? (It should.) Be wary of lawyers who charge for each document separately—that could be a bait-and-switch practice that ends up costing you too much.
  • What’s the process for creating a plan? You want to find out how many meetings to expect, what you would need to bring to the meeting, and how long the process usually takes. There’s no right answer here, but you do want to get a sense for how it would be to work with that attorney.

Both of my parents passed away within two years of each other (2014 and 2016). My mom handled my father’s things and I did hers, including filing her final taxes in 2017. They had some credit card debt which couldn’t be paid from the estate (only asset was the house). Now I’ve received tax forms for that debt for both parents and it’s a pretty hefty sum. How are debt forgiveness documents supposed to be handled? Trying to figure out if I need to file taxes for both of them again (and be held responsible for these payments) or if I should be going down a legal path of some sort. 

Here’s the short answer to whether you are, personally, responsible for that credit card debt: No.

Now let me explain why. If there is money in their estate to pay the outstanding balance, the debt should be paid before beneficiaries receive what’s left, and after any back taxes have been paid. Learning this was one of my happiest moments in law school—my father was a serial entrepreneur, and I lived in fear of being responsible for his personal debts when he died. There are, of course, a few exceptions: If you were a joint cardholder, you’d be personally liable for that debt; If you were the executor of your mother’s probate estate or the Trustee of her living trust and failed to pay this debt after being aware of it, you would be personally liable to pay it, but neither exception sounds relevant here.

Credit card debt is what’s called unsecured debt: If there isn’t enough money in the estate to pay the outstanding balance on the card, the credit card company just has to take the loss.  Secured debt, like mortgages and car loans, are different. If a borrower doesn’t pay on a secured loan, the underwriter can take back the house or the car.

Even though you aren’t legally responsible for your parents’ credit card debts, companies will often pressure you to pay up. Read this carefully: You do not have to do this.

Even though you aren’t legally responsible for your parents’ credit card debts, companies will often pressure you to pay up. Read this carefully: You do not have to do this. If there is some money in the estate, but not enough to pay the whole balance, you can often negotiate a settlement and pay a smaller amount.If you have already distributed what was left in the estate, the credit card companies could come after the estate beneficiaries to try and collect against the debt, but they rarely do so.

Debt collectors do have a right to contact you if you are the executor of the estate or the person authorized to pay the decedent’s debts, but they don’t have the right to harass you or mislead you into thinking that you are legally responsible to pay the debt. If they do contact you and you want them to stop, you have the right to ask them to stop calling – you need to send them a letter stating that you do not want the collector to contact you again. Send it by certified mail. This will stop them from contacting you – but it won’t stop them from taking action to get you to pay, such as filing a lawsuit to collect on the debt.

Here’s a good article from the Federal Trade Commission about your rights under the federal Fair Debt Collection Practices Act, which prohibits debt collectors from using abusive, unfair, or deceptive practices to try and collect on a debt.

Liza Hanks is an attorney, writer, speaker, and podcast host with a passion for making legal concepts clear and accessible to everyone. She is a partner at GCA Law Partners LLP in Mountain View, California, where she practices estate planning, trust administration, and probate law. She doesn’t think estate planning is or should be boring. She thinks death is like sex, really. We all do it, we all have questions about it, most of us don’t know who to ask these questions, and most of us are interested in everyone else’s questions.

Question #1 is excerpted from Every Californian’s Guide to Estate Planning, by Liza Hanks (Nolo, Inc.), with the permission of the publisher, Nolo, Inc.

This post is brought to you by Modern Loss and Liza Hanks, and in addition to the terms conditions set forth in Modern Loss’ Terms of Service, the following additional disclaimers apply:

1. The information provided to you by Liza Hanks is provided for informational purposes only, and cannot be construed as legal advice of any kind. You should always consult a licensed legal professional in your jurisdiction prior to making any decisions that may require legal counsel.
2. No client-attorney relationship of any kind, implied or in-fact, is created by the publication of this post. 

Estate Department logo by Frances Tremblay.

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