An estate plan allows you to prepare for what will happen after you pass away or if you can no longer take care of yourself and your estate. An estate planning attorney, also known as an estate lawyer, can help you create a solid plan for handling both of these situations. They can offer legal advice on wills, trusts, and your local probate process, and some estate lawyers may also have specialties, like planning the succession of a business.
Most people can benefit from working with an estate planning attorney, though not everyone will need one. You can, for example, make a will without a lawyer.
The internet is a useful tool for finding an estate attorney, but it shouldn't be your only source. You can get referrals from family and friends or check with your state and local bar associations, since an attorney must pass the bar exam to practice in your area. Laws can vary significantly from one state to the next.
What does an estate planning attorney do?
An estate planning attorney is trained in matters related to passing on your assets after you die. Estate attorneys help you create draft documents and create plan so that your assets go to your intended beneficiaries without any court battles or big tax bills.
Beyond just planning for after your death, an estate attorney can also help prepare for situations where you're incapacitated and can't care for yourself or your assets. In particular, some attorneys specialize in elder law, which is tailored to senior citizens.
Here some things an estate planning attorney can help you do:
Prepare a last will and testament that's harder to contest after you die
Help you set up a testamentary trust or living trust
Transfer assets into your trust and oversee trust administration
Appoint guardians for your children
Help with tax planning and wealth transfers
Make a plan for charitable giving
Plan for unexpected situations, like the death of your beneficiary
Write a living will outlining your end-of-life decisions
Grant someone a durable power of attorney for financial or health care decisions
Answer any questions you have about estate planning and local laws
If you're unsure about where to start with your estate plan, try our estate planning checklist.
How much an estate planning attorney costs
The cost of working with an attorney varies depending on where you live, what services you receive, how complex your situation is, and the lawyer's fee structure. Many estate attorneys offer a free consultation, which you can use to discuss the basics of what you want and how much you're willing to pay.
Estate planning attorneys typically charge more in a city compared to more rural areas. Different services also have different costs. For example, getting a simple will may cost you a couple hundred dollars, while setting up a trust is likely to cost more.
→ Learn more about the cost of a will
Hourly fees vs flat fees
An estate planning attorney may bill you according to an hourly rate or a flat fee. A flat fee offers the benefit of indicating up front how much you will pay, but neither billing method is necessarily better and they're used in different situations.
If you pay an hourly rate, you may have to pay a retainer, an amount that you pay in advance based on the expected cost for your services. The estate lawyer will use the retainer to pay for their services, and you may have to pay more if the final cost goes beyond the retainer.
An attorney is more likely to offer a flat fee if they feel they can confidently predict how difficult it will be for them to create your documents. So you may be able a flat fee for a will, but you may have to pay the attorney's hourly rate if your will has the potential to be complicated. Some lawyers may even offer certain "packages" that include preparing a predetermined set of estate documents for you.
Situations when you should hire an estate lawyer
Most people could benefit from working with an estate planning attorney, but it may not be necessary (and you may not want to pay for it) in many situations. On the other hand, people in certain situations may need the help of a professional to ensure their estate plans are comprehensive and accurately state their intentions.
Here are some common situations where you may want to consider hiring an estate lawyer instead of doing things on your own:
You're a small business owner or a business partner who needs help with business succession planning.
You have out-of-state property or assets. Passing on assets can get tricky if they're crossing state boundaries, since two states may have different tax codes or other legal requirements for how to transfer an asset.
You have foreign property or assets.
You're planning to bequeath assets to someone who isn't a citizen. You could also run into issues if you plan to name an executor who isn't a legal U.S. resident. Certain tasks, like getting a tax ID to open an estate account, may not be possible for nonresidents.
You want to leave a legacy. An estate attorney can help you set up a charitable trust for your donations, which can also give you a tax break.
You want to disinherit your immediate family. This may be harder in some areas, like in community property states, where you and your spouse share ownership of your assets.
You have a blended family and want to bequeath assets to a stepchild, stepparent, or half-sibling. These individuals most likely won't receive any of your assets unless you take deliberate steps in your estate plan to ensure they do. (Learn more about estate planning for blended families.)
You have immediate family members with special needs or who need to qualify for government benefits, like Supplemental Security income (SSI) or Medicaid. If you provide care for anyone who has special needs, an estate lawyer can help you appoint a guardian for them and create a robust plan that includes a special needs trust.
You want to protect your assets from Medicaid. If you receive long-term care or other services through Medicaid, the Medicaid Recovery program may seek repayment by claiming some of your estate, like your house, after you die. A solid estate plan will protect your assets and allow you to pass on as much of your estate as possible.
You need to set up an irrevocable trust because are worried about estate tax or need asset protection from creditors and lawsuits. An irrevocable trust likely can't be closed or changed once you create it, so it's best to talk with an estate attorney first to understand whether or not it's the best option for you.
If your goal is simply to pass on assets without going through probate, a revocable trust is probably enough and you can create one without an estate planning lawyer.
How to find an estate planning attorney
Finding an estate attorney may seem like a daunting task, but breaking the process down into smaller steps can help.
1. Create a list of potential attorneys
Here are some places to find an estate planning attorney:
Referrals from friends and family
Referrals from financial advisors or accountants
Local probate courts
Local, county, and state bar associations
Make sure you look for an attorney who specializes in estate law. That may sound obvious, but if you work with someone with another specialty, even if they also work with estates, your estate plan may not be 100% up to your needs.
All attorneys need to pass the bar exam to practice law in your area and the state bar association will have lists of their attorneys. To start, check the website of your local, county, and state bar associations.
What about estate lawyer ads on TV and radio?
Local and state laws regulate who can legally claim to be an attorney, so you can be confident that the people in print, radio, or TV advertisements are actually lawyers or part of a firm that provides legal services. However, you should still look up reviews of them online and check that they are experts in estate planning.
2. Talk to every estate attorney on your list
It sounds tedious but it's important to talk with all your potential lawyers, since estate planning is a personal process. You will be sharing personal information about your money and your plans for the time of your death. Having a strong attorney-client relationship will make things a lot easier.
Questions to ask a prospective estate planning attorney
How long have you been practicing?
Where were you educated in law?
How will we contact each other?
Will I be able to reach you directly or will someone else be my point of contact?
Will you send me updates on my estate plan in the future or is this a one-time service?
How will you charge me (hourly vs fixed rate), and what is your rate?
Are there any charges not included in that rate?
If you're working with an estate lawyer from a large law firm, it's important to know if you will work exclusively with one person. It's possible that an assistant or paralegal will serve as the point person for communications, while the actual estate attorney is harder to contact.
You may also want to look for an estate planning attorney who will represent your estate in probate court after you die. It's possible for another attorney to handle probate litigation, but working with someone who already knows your estate could make the process smoother.
3. Check their fees and make your choice
Recheck all of the fees of the remaining estate lawyers on your list to see who you can reasonably afford. Make sure you understand everything they're going to charge you for.
Try to talk with people who have worked with the attorney, like their clients or even another attorney. Attorneys who are difficult to work with or who treat people poorly will likely develop such a reputation quickly with their peers.
If necessary, have a follow-up conversation with your prospective estate lawyer. You shouldn't feel like you're putting them out; this is their job and you're going to be working with them a lot for at least a short period. How they handle follow-up calls is also a good way to gauge how they will work with you if you actually become their client.
