Thursday, January 30, 2020

Stay In Your Own Lane: When non-lawyers give flawed legal advice

Stay In Your Own Lane: When non-lawyers give flawed legal advice
January 30, 2020
By: Melinda Gustafson Gervasi

With a deep, long sigh my frustration and annoyance was revealed to the client sitting across my conference table.  It's hard to hide it anymore.  After 15 years of counseling clients on the ins and outs of estate planning and probate, I wonder what my work day would be like if I did not have to spend so much time unwinding flawed legal advice dispensed by non-lawyers.  It's the financial planners, bankers, and in some cases tax experts that fuel my trademark sigh. 

Don't get me wrong, I value the advice these experts provide on mortgages, index funds, and tax deductions. I just cannot tolerate it when they veer out of their lane, going full speed ahead with brazen authority, dispensing directives on what my clients can, and cannot due, within legal documents.  I stay in my lane, eyes on wills, powers of attorneys, trusts, domiciliary letters and the like.  I will not counsel on aspects of a mortgage, investment diversification, or whether a tax return should be filed.  I know enough to see red caution flags and direct my client to seek the advice of the appropriate expert.  But I do not give advice outside my area of focus. Sadly, this is not always the case when it comes to the law.

The importance of staying in your name no matter the horsepower.  Image by M. Gustafson Gervasi 2019
Doing well in a "business law class" as part of an MBA program does not make you a lawyer.  Listening to a lawyer present on the difference between probate and non-probate assets does not make you a lawyer.  Reading an article in the Wall Street Journal on the use of a trust in estate planning does not make you a lawyer.  Even going to law school and passing the bar does not mean one should counsel on estate planning and probate unless that is the person's area of focus.  What happens when these guidelines are ignored, when people veer out of their lane?  Accidents.

Accidents in estate planning and probate have consequences.  Inadvertent tax liabilities develop.  A well thought out and planned estate plan is pushed aside when a beneficiary form on an asset is filled out in a way that does not parallel the will or trust.  And clients can move their business elsewhere when they learn what they were told, "you simply cannot due xxxxx", is in fact wrong.  Dead wrong.  Dispensing bad advice puts your client on the exit ramp from your office, usually with a pit stop in my conference room for clarification.

My take-away for you -- just because it is free advice does not mean it is advice you should act on.  Moreover, a blog is not legal advice.  A post captures my thoughts and reflections from this side of a  lawyer's desk.  Please seek legal counsel from an attorney licensed in your state of residence.  And thank you for reading.

Wednesday, January 22, 2020

New Year Resolutions!

It's 2020!  A new year.  A new decade!  A new !?!?!?  Along with signing up for gym memberships, getting an estate plan seems to be one of the top new years resolutions.  Each January we open a fresh new calendar and plan for growth and adventures.  We resolve to be more organized, to be healthier, to be on top of things.  If you are one of the many Americans making the resolution to get your estate in order, here are a few things to consider.

  1. Estate Planning boils down to control.  Who will do what, what will go where?  If you do not make the decision and put into a legal format someone else will, often dictated by state statute.  If you need a source of motivation to roll up your sleeves and take action, focus on "control";
  2. Hire a professional.  We live in a DIY society, and that is a wonderful thing -- if you have the time, patience and skill set to complete the project appropriately.  My husband and I recently updated our kitchen, but not on our own.  We hired experts.  The result was a quality kitchen in a short period of time.  There are plenty of resources about doing an estate plan, but are they the right fit for your situation and skill set?
  3. Accountability.  Who will make sure you actually finish creating an estate plan.  It's easy to order books on Amazon, download forms off the web, or attend a free seminar at the local library.  But until you put ink to paper on final documents, you do not have an estate plan.  Do you need a "workout buddy" to keep you motivated?  Perhaps a friend, a spouse, or an attorney that will check in on you to keep the project moving forward.
  4. Don't Procrastinate.  Life happens, and ends, in a second.  Medical events develop leaving one incapacitated and unable to create a plan.  Sometimes a death is out of the blue and instantaneous, leaving no time to make decisions.  All too often someone falls gravely ill and while processing diagnoses and treatment plans, they attempt to wrap their energy and mind around putting together an estate plan.
Wishing you a wonderful 2020, and if it's on your to-do list, may you update or create an estate plan that gives you peace of mind.   Thanks for reading.  As a reminder, a blog post is not legal advice.  It is simple thoughts from my side of the desk.  Please consult with an attorney in your state, and obtain legal advice specific to your situation.