Guidance in Selecting an Estate Planning Attorney
This guidance is written for my clients’ use in the transition of their estate planning work to a new attorney.
Estate and Estate Planning Areas
Estate planning consists of six distinct types of work. Attorneys who practice and would be excellent in one area may not handle matters in one of the other areas. The first step in selecting an estate planning attorney is to determine what type of assistance you need. The following is a brief overview of each of these areas:
Estate Planning for a nontaxable estate. In the 1980s and 1990s most of my clients had taxable estates. The exemption from estate tax during those years ranged from $125,000 to $600,000. Since that time the estate tax exemption has continued to increase but with a return to old levels after a set period. The estate tax exemption for 2020 is $11.58 million. This exemption is scheduled to drop to half this amount after the end of 2025. If the value of your estate will not exceed that amount ($5.79 million), then you do not need planning to avoid estate taxes.
You will need a Will, possible a Revocable Trust and disability documents. Except for estate planning attorneys who have limited their practice to litigation or probate, most attorneys prepare these testamentary and disability documents and are familiar with and use generation skipping trusts (which provide protection against creditors and estranged spouses) and life insurance trusts to remove an insurance policy from an estate to bring the estate down to the non-taxable level.
Wealth transfer planning. Some estate planning attorneys also provide wealth transfer planning for clients. If you have a taxable estate, then you may need these services. I say you may need these services because you may decide that you do not want to have your plan governed by estate tax reduction or you may be able to take some steps in the structure of your Will, by lifetime gifts or by creating a life insurance trust to own a life insurance policy to avoid estate taxes.
Attorneys who handle wealth transfer planning are familiar with and use intentionally defective grantor trusts (and sales to these trusts), GRATs, Qualified Personal Residence Trusts, beneficiary grantor trusts (under Section 678 of the Internal Revenue Code) as well as Generation Skipping Trusts, Split Purchase Residence Trusts, partnerships and other sophisticated estate planning techniques. If your estate is not taxable, you do not need these trusts or entities to save taxes, although the generation skipping trust may be used to protect against creditors and estranged spouses and a partnership may be used to hold a jointly owned property.
Elder Law and Special Needs Planning. Elder law and special needs planning are distinct areas of expertise. This area is as complex as the tax law. If you are planning to both qualify for government benefits and to retain some of your assets to supplement your care (or for your spouse to retain assets if your spouse is not disabled), then you should retain an attorney who focuses his/her practice in this area.
A related area is special needs planning. If you have a special needs child who will need governmental assistance, I recommend that you retain an attorney who specializes in this type of planning.
Probate. Probate is a broad area. Texas has a simplified probate process that is available if the decedent’s Will provides for the appointment of an independent executor. I believe all estate planning attorneys provide services to probate a Will with an independent executor.
Probate also includes the probate of a Will that does not provide for the appointment of an independent executor, providing probate services when the decedent had no Will, and providing probate services when there are problems in the structure of the Will. An attorney whose practice focuses on all types of probate matters will be the most efficient in providing services in these or other unusual situations.
Estate Administration. Administering an estate is the process of collecting the assets, paying any debts of the decedent and distributing the estate as provided in the decedent’s Will (and/or Revocable Living Trust). There is some administration in any estate. However, if the estate is large, if trusts are created for the beneficiaries, if the estate requires the filing of an estate tax return, includes unusual assets or has other complicating aspects then the administration is likely to require a higher level of expertise and experience.
Estate and Fiduciary Litigation. If there is conflict regarding the probate of a Will, the administration of an estate or the management of a trust that cannot be resolved by agreement, then an attorney specializing in estate and fiduciary litigation provides the expertise and knowledge to address these situations.
In selecting an estate planning attorney, consider what your needs are. If your estate plan includes “grantor trusts” and “cake trusts”, I recommend that you select an attorney who has experience structuring and implementing plans that utilized these trusts.
My practice focused on wealth transfer planning and the administration of large or complex estates. I also provided estate planning services to almost all of my clients. Many of the estates that required wealth transfer planning in the 1990s, no longer need that type of planning with the increased exemption.
Selection Process
With that background how do you select an attorney? Referrals from friends is always a good place to start. You can also obtain a referral from an attorney you use for other purposes, your CPA or your financial planner. I recommend that you obtain three names all of whom come highly recommended. I recommend that you call each one and talk with them generally on the phone and set up a meeting with the one (or two or even all three) with whom you connect on the phone call. I recommend that in deciding among the attorneys that are recommended that you rely on your gut. Your referral process should provide you with three qualified attorneys, and your process is to determine who you feel you can comfortably confide in regarding the most important (and in some ways intimate) aspects of your life - your family and your money.
Although estate planning attorneys draft documents, the estate planning attorney is most importantly, a relationship. The more that the attorney knows about you, your family, your values, your concerns and fears, your hopes, the better the attorney can design your estate plan. Your plan can only be as good as the information that you provide the attorney; financial, yes, but also family dynamics and your wishes.
Credential Guidance and/or Sources other than the Referral Sources Listed above
American College of Trust and Estate Counsel (ACTEC) Fellows.
ACTEC is a national organization of estate planning attorneys who practice predominantly in estate planning and are very involved in the profession. Estate planning attorneys who specialize in estate planning and are very involved in the estate planning profession through Texas Bar involvement, drafting legislation, writing professional legal articles and by speaking can be nominated by other Fellows of ACTEC to be members of this organization. The process is highly selective and is an honor to be a Fellow. However, many excellent estate planning attorneys are not nominated for ACTEC because they are not active in bar contributions, writing and speaking.
The ACTEC website (www.actec.org ) has a list of attorneys who are Fellows. You can search by state and city to obtain a list of attorneys in Dallas or in any other city.
Board Certified in Estate Planning and Probate - Texas Board of Legal Specialization
Texas provides a certification process for estate planning attorneys. If an attorney practices predominantly in this area and has been practicing for at least five years, the attorney can obtain recommendations from several attorneys and a judge and can apply to be board certified in estate planning and probate. If the applicant is approved, then the applicant must take a test and if the attorney passes the test, then the attorney is board certified. Board certified attorneys must then maintain their certified status by continuing th practice predominantly in this area, keep current in the area by attending continuing education programs and by updating their certification every five years with additional recommendations. Selecting an attorney who is board certified is a useful way to determine whether a recommended attorney has the requisite skills.
However, an attorney may decide not to pursue the board certification process. The fact that an attorney is not board certified does not mean that the attorney cannot be an excellent estate planning attorney. The certification exam covers a number of areas, including estate tax. Attorneys whose practice does not involve estate tax issues, may elect not to become certified since learning about the estate taxes is not relevant to their practices. I was board certified in the early 1980s but cancelled my certification when I stopped practicing law for a couple of years in what I thought was going to be a career change. After returning to the practice of law in 1985, I did not go through the certification process again until 1993.
You can search for board certified attorneys on the Texas Board of Legal Specialization website for Board certified attorneys (www.tbls.org) searching by area of expertise and geographic area.
I have worked with some of the ACTEC Fellows, Board Certified attorneys and with other attorneys who focus their practice on estate planning but are neither ACTEC Fellows nor Board Certified Attorneys. I know other attorneys by reputation but have not worked with them. For those clients who would like to know who some of the attorneys I have worked with (and are in private practice), the following is a partial list of ACTEC Fellows and Board Certified attorneys. Since my practice did not include litigation or elder law most of these attorneys do not practice in those areas. The list includes the date the attorney was licensed but the license date will not be an accurate reflection of age if the attorney had a career prior to becoming an attorney. I omitted all attorney with a license date prior to 1980. Two attorneys who are excellent who were removed on this basis but are under 70 years old are Barbara Anderson (ACTEC Fellow and Board Certified) and Don Totusek (Board Certified). Either of whom would be a good choice if the age and possible retirement on the horizon is not an issue.
One young attorney who is not yet eligible to take the board certification exam but who has a great reputation (Best Lawyers to Watch 21-22; D Magazine Best Lawyers 2021) is Jackie Wheeler Davis at Jackson Walker. I worked with Jackie’s mother, Karen Wheeler, and have kept up with Jackie’s career. Her contact information is listed in the Attorney Contact Information section.
| ACTEC Fellows: |
|---|
| John Bergner |
| Mary Burdette |
| Lora Davis |
| Shannon Guthrie |
| Jim Mincey |
| Eric Reis |
| Laurel Stephenson |
| Christine Wakeman |
| Board Certified Attorneys (those listed above as well as those listed below): |
|---|
| Brandy Baxter-Thompson |
| Kristin Brown |
| Shawna Brown |
| Scott Carter |
| Jack Hales |
| Sam Long |
| Tom Neuhoff |
| Claire Raggio |
| Erny Simmons |
| Dani Smith |
| Karen Wheeler |
| Attorney Contact Information |
|---|
|
Brandy Baxter-Thompson (TX License Date: 11/2005) Lan Smith Sosolik Baxter-Thompson & Johnston PLLC 12221 Merit Drive, Suite 825 Dallas, TX 75251 972.386.8500 Email: brandy@lss.legal Web Site |
|
John F. Bergner (TX License Date: 11/1985) Winstead PC 2728 N. Harvard Street, Suite 500 500 Winstead Building Dallas, TX 75201 214.745.5289 Email: jbergner@winstead.com Web Site |
|
Mary Burdette (TX License Date: 11/1982) Burdette Law Firm 12221 Merit Drive, Suite 825 Dallas, TX 75251 469.375.4516 Email: mary@mcburdettelaw.com |
|
Kristin Brown (TX License Date: 11/2010) Davis Stephenson, PLLC 100 Crescent Court, Suite 440 Dallas, TX 75201 214.396.8800 Email: kristin@davisstephenson.com Web Site |
|
Shawna Brown (TX License Date: 2/1982) Law Offices of Shawna L. Brown, PC 15110 Dallas Parkway, #310 Dallas, TX 75248 972.248.2519 Email: shawna@shawnabrownlaw.com Web Site |
|
Scott Carter (TX License Date: 11/1998) Mincey-Carter, PC 12221 Merit Drive, Suite 200 Dallas, TX 75251 469.916.1980 Email: scarter@minceycarter.com Web Site |
|
Jackie Wheeler Davis (TX License Date: 11/2015) Jackson Walker LLP 2323 Ross Avenue, Suite 600 Dallas, TX 75201 214.953.5952 Email: jdavis@jw.com Web Site |
|
Lora Davis (TX License Date: 11/1998) Davis Stephenson, PLLC 100 Crescent Court, Suite 440 Dallas, TX 75201 214.396.8800 Email: lora@davisstephenson.com Web Site |
|
Shannon Guthrie (TX License Date: 11/1993) Guthrie Law Firm, PLLC Dallas Office: 13155 Noel Road, Suite 900 Dallas, TX 75240 214.550.8187 Tarrant County Office: 450 N. Kimball Avenue, Suite 140 Southlake, TX 76092 817.482.6280 Email: shannon@guthrie.law Web Site |
|
Jack R. Hales, Jr. (TX License Date: 6/2015) Law Office of Jack Hales, PLLC 10440 N. Central Expressway, Suite 800 Dallas, TX 75231 214.373.7197 Email: jack@jhaleslaw.com Web Site |
|
Samuel E. “Sam” Long (TX License Date: 11/1980) Shackelford, Bowen, McKinley and Norton, LLP 9201 N. Central Expressway Floor 4 Dallas, TX 75231 214.780.1420 Email: slong@shackelford.law Web Site |
|
Jim Mincey (TX License Date: 11/1980) Mincey-Carter, PC 12221 Merit Drive, Suite 200 Dallas, TX 75251 469.916.1980 Email: jmincey@minceycarter.com Web Site |
|
Tom Neuhoff, Jr. (TX License Date: 11/1993) Bisignamo Harrison Neuhoff LLP 5949 Sherry Lane, Suite 770 Dallas, TX 75225 214.389.9177 Email: tneuhoff@bhnlaw.com Web Site |
|
Claire Raggio (TX License Date: 11/2004) Jackson Walker, LLP 2323 Ross Avenue, Suite 600 Dallas, TX 75201 214.953.6000 Email: craggio@jw.com (effective 9/1/21) Web Site |
|
Eric G. Reis (TX License Date: 10/1996) Holland & Knight LLP 1722 Routh Street, Suite 1500 Dallas, TX 75201 214.969.1118 Email: Eric.Reis@hklaw.com Web Site |
|
Erny G. Simmons (TX License Date: 9/1993) Glast Phillips & Murray, P.C. 14801 Quorum Drive, Suite 500 Dallas, TX 75254 972.419.8371 Email: simmons@gpm-law.com Web Site |
|
Dani D. Smith (TX License Date: 9/1997) Lan Smith Sosolik Baxter-Thompson & Johnston PLLC 12221 Merit Drive, Suite 825 Dallas, TX 75251 469.375.4537 Email: dsmith@lss.legal Web Site |
|
Laurel Stephenson (TX License Date: 11/1994) Davis Stephenson, PLLC 100 Crescent Court, Suite 440 Dallas, TX 75201 214.396.8800 Email: laurel@davisstephenson.com Web Site |
|
Christine Wakeman (TX License Date: 11/2010) Winstead PC 2728 N. Harwood Street, Suite 500 500 Winstead Building Dallas, TX 75201 214.745.5471 Email: cwakeman@winstead.com Web Site |
|
Karen Wheeler (TX License Date: 11/1986) Guthrie Law Firm, PLLC 13155 Noel Road, Suite 900 Dallas, TX 75240 214.550.8187 Email: karen@guthrie.law Web Site |