January 2019
By Dennis McAndrews, Esq. and Jennifer Simons, Esq., McAndrews Law Offices, P.C., Estates and Trusts Department
About 20% of our Estate Planning work involves repairing defective estate plans created by other attorneys. On a professional level, this is quite disturbing to observe, as under the Rules of Professional Conduct, attorneys are required to handle only matters which their skills and experience allow them to handle competently. Nonetheless, clients frequently come to us with wills and trusts which do not properly address their situation, and sometimes actually create more harm than good for the clients. In some cases we are able to address these deficiencies quickly and simply, but in other cases, such as where a trust has been funded and is in operation, more significant problems must be addressed.
These “repair jobs” come to us in several different ways. In many cases, a trusted family advisor such as an accountant or a financial planner detects problems with the will or trust that has been previously executed and refers the family to us to review the documents to determine whether changes are, in fact, necessary. In other cases, a trustee of a defective trust may run into difficulties with a government agency whereby a beneficiary loses government benefits due to an improperly drafted trust. Finally, in other circumstances, the family simply has an unsettled feeling about their estate planning documents, often because the documents were never adequately explained to them in the first place, and their own review suggests that their needs were never properly addressed.
Other times the “repairs” are the result of documents that were prepared using generic legal forms on the internet in an effort to save time and money. While many individuals believe that they do not have complicated estate plans and therefore opt to complete a “fill in the blank” form that they download from the internet for a nominal fee, this can often have disastrous effects and cost much more money in the long run if the document is not adequate or does not comply with state law. Every state has specific laws governing documents such as a Will or Power of Attorney. Imagine creating your own Power of Attorney document only to have it not be accepted by a bank or hospital because it does not comply with the laws of your state. And in many instances it may be too late to then go and have another document prepared by an attorney if the Principal is no longer competent to sign a new Power of Attorney.
We have found that the instincts of families, financial planners, and accountants in these matters are frequently correct, and that a fundamental problem exists which must be addressed. It may be a will which unwisely leaves funds directly to an incapacitated person, a minor, or some other individual who is either incapable of handling money or should not, for other reasons, be identified as a beneficiary under the will. Similarly, there may be a tax clause which unfairly penalizes one family member who would benefit under a will, but will not receive benefits of jointly held property such as real estate or joint bank accounts. With regard to trusts, the trusts might not provide sufficient discretion to a trustee to provide needed benefits to a beneficiary. We also frequently see trusts which were, in theory, designed to protect access to public benefits such as Medical Assistance or Supplemental Security Income, but were drafted improperly and actually disqualify the individual from receiving critical benefits. This is especially true when it comes to estate planning for families who have individuals with special needs. Not all estate planning attorneys have extensive experience with drafting Special Needs Trusts and the many regulations regarding this type of trust and issues involving public benefits.
When dealing with medical issues or a diagnosis from a physician, individuals often decide to obtain a second opinion if they suspect or feel uneasy about a diagnosis or treatment plan. Obtaining a second legal opinion or having an attorney review documents previously drafted by another attorney is no different. You should feel confident that the documents that were prepared on your behalf are drafted correctly and will meet your family’s estate planning goals. We welcome the opportunity to consult with families who are concerned about the adequacy of their estate plan, no matter when it was drafted. In all estate planning matters, the goal is to provide peace of mind to families, and in every situation we handle, this peace of mind is our paramount consideration.
