"Custom Drafting"
What does Frank Lloyd Wright’s Fallingwater have to do with estate planning? That’s a great question. You’ll soon find out.
I heard something earlier today that made me cringe. I was talking with an attorney who works at another law firm, where he focuses primarily on estate planning. He said that his firm strongly discourages “custom drafting” by attorneys, meaning that attorneys had to adhere to cookie cutter forms, even when clients’ needs might require something different. What’s ironic about this approach (and unfortunate for that firm’s clients) is that his firm charges fees that are two or three times what we charge to provide clients with the same documents.
You’ll have to give me a second while I climb up onto my soapbox….Big step here…I think I got it…Ok…Here we go.
My older brother, Michael Gibson, is a brilliant artist, architect, and professor at Kansas State. As an architect, his first job is to listen. He then takes what a client wants, and applies the knowledge of realizing how some parts of a structure need to work and the creativity of seeing what’s possible. The end result is a product that is similar in some respects to what a lot of people have (the “bones” of the structure and how it’s assembled will follow tried and true engineering and building standards), but still different than anything else out there, and unique for that specific client. Importantly, it’s also something that the client—who, when it comes to architecture and design, doesn’t possess the same knowledge and creativity—couldn’t have envisioned.
Our approach is to be architects of estate plans. We revel in that role. Finding solutions that perfectly fit each client’s situation is what excites us. We are not “form jockeys.” We do not take clients who have a star-shaped situation and try to fit them through a square hole. We practice law so that we can engage in custom drafting, not cower from it.
The best part, from our clients’ standpoint, is that we still do this custom drafting for a reasonable fee.
Let me give you an example.
Recently, I had clients come to me whose son passed, and left behind a young daughter, who is now 17-years-old. This granddaughter is being raised in a very difficult situation. Her mother has extensive drug problems and minimal expectations for the granddaughter (the type of expectations where a “D” in a class stands for “Diploma!”). The mother has also brainwashed this granddaughter into thinking that her grandparents (all four of them) are horrible people. So the granddaughter is barely on track to graduate high school, has no plans for what to do after graduation, and treats her grandparents horribly.
Given all of that, my clients said they wanted to do simple Wills, leave this granddaughter $10,000, and leave the rest of their $1,500,000 to charity. Hearing their story, though, I couldn’t help but feel like that wasn’t truly the best solution.
After quite an extensive discussion, the plan we came up with was to carve out $1,000,000, set it aside into a trust that would be managed by my clients’ two best friends, allow the friends (as trustees) to make distributions to the granddaughter for her health, education, maintenance, and support, and then, 10 years after the funds were set aside, the friends would distribute the assets however they deemed appropriate among the granddaughter and my clients’ favorite charities. So it would be entirely possible for the granddaughter to receive the full $1,000,000 over time if she started to straighten up and fly right. Alternatively, if she continued down the same road as her mother, didn’t show any initiative, and didn’t become a contributing member to society, she would receive very little of the $1,000,000. We discussed how the clients’ best friends had considerable flexibility and protection from liability, but how this could still burden them. So we also made sure the friends could appoint a successor trustee, and still retain the ability to informally advise that trustee and remove that trustee if the trust administration process went sideways.
The clients were thrilled with this solution. It fit precisely with what they truly wanted. But it was also a solution they could never have envisioned. They didn’t know what was possible with a trust. They also didn’t know how the trusteeship worked, and how you can build in flexibility to account for changes in circumstances. But that’s ok. It’s not their job to know all of this. All they need to do is talk openly. It’s our job to listen, then use our knowledge and creativity to come up with a perfect solution.
The kicker here is that my clients’ estate plan, in the above situation, cost $1,400. That included Wills, their trust, financial/durable powers of attorney, healthcare powers of attorney, living wills, and a transfer-on-death affidavit to keep their residence out of probate. It also included guidance on how to avoid probate and set-up beneficiary designations or ownership of accounts. It’s a flat fee, too, so when the clients received the drafts and had questions, they could call or email me repeatedly without any concern about running up the tab.
So that’s a little taste of how we approach things. If you think you have a difficult situation, whether it’s complicated by assets or by family dynamics, let’s talk. I’m pretty darn confident we can come up with a solution that makes you breathe a sign of relief, and that won’t break the bank.
You can reach me at mgibson@pappasgibson.com.