Tips for Advisors to Better Work with Estate Planning Attorneys

Understanding the complementary roles we play

Yesterday, Kristina Schneider of Ultimate Estate Planner published a great video on why financial advisors are “fed up” with estate planning lawyers. I would encourage you to give it a listen:

This is a subject that has been close to my heart for a long time, and I have enough unpublished draft articles to fill an entire book on the subject. But I have not published them, because it is difficult to approach this subject without turning it into an “us versus them” debate. I prefer a more collaborative framing that does not turn into finger-pointing about how the other side is wrong.

That being said, it is no longer a two-sided debate (if it ever was one). Many new entrants to the estate planning world - especially from a tech, private equity, and venture capital perspective - use this supposed “debate” for marketing clout. It seems like every software and service provider is trying to win the hearts and minds of advisors with estate planning content of late. There are many ways to use estate planning to build your practice. But, contrary to what this marketing zeitgeist is telling you, getting there will usually involve working with estate planning attorneys.

Having been an estate planning attorney myself, this article shares my thoughts on how advisors can work with estate planners from a more pragmatic perspective:

1. Administer an estate or trust. Most of the people I see advocating for online document preparers, and avoidance of attorneys, have not spent significant time administering estates or trusts. Doing so gives you a much better view on how the sausage is made. And, I am thoroughly convinced that many of the advisors who are homers for estate planning right now would abandon the field entirely if they spent significant time working with families through the estate or trust settlement process. This is a field that gets messy. The best documents in the world can fail, and the worst documents in the world can succeed. More often, the success and failures of a plan are determined years in advance by the dynamics of a family and individuals within the family. These are problems that are not conducive to scalable solutions, contrary to what the private equity and venture capital investors in estate tech solutions would have you believe.

2. Actually have the desire to work with estate planning attorneys. I know that the content out there is telling you that you don’t have to rely on estate planning attorneys, and that you are and can be the true “quarterback” of the client relationship without some pesky attorney messing things up. Don’t be fooled. I know attorneys have their faults, but you will get a lot further approaching things from a spirit of collaboration. If you are not willing to do so, or if you are only willing to do so on your terms, you don’t need to read the rest of this article because it will be a waste of your time. (Not to mention, there is a pesky reality that quarterbacks do not play defense.)

3. Throw away the false hopes of COI referrals. Older marketing training out there tells you to network with estate planners so that they can refer you business. It seems unfair to say, but I need to say it - we will not refer you business unless or until we have a long working history. Why? Because many of our clients were referred from other advisors with whom we have a long working history, and we aren’t going to disrupt those relationships even if a client asks. (Not to mention, if we don’t agree with your method of planning, we will happily take referrals from you but we will never reciprocate even when opportunities arise,) Please also realize that non-referral business is not as frequent for us, making it harder to reciprocate. B2C marketing for estate planning is more difficult than it might logically appear. Existing clients don’t refer friends as often, because we don’t make it a habit of asking from an optics perspective, and a significant number of business inquiries we get from the internet and telephone calls are not a fit. In fact, you may have a better chance if you learn how to co-market with attorneys.

4. Establish a good working system with attorneys before making referrals to them. Many advisors complain about the “black hole” of referring business to estate planning attorneys and then never hearing back about status. But, in many cases there is nothing to hear back about, and no expectations have been communicated as to how to mesh our systems of getting things done. (And to be fair, I recognize that many attorneys completely lack any system for collaboration – this is not a one-sided indictment.) If you do give a referral, give a heads-up to the attorney. We are more likely to keep you in the loop then if and when the client engages us, because sometimes the client won’t even let us know that you were the one who referred them to begin with (especially if they schedule with our staff instead of us directly). And, if you are the “quarterback” of the relationship, then perhaps the onus is on you to quarterback the check-ins – with us and/or your client. It sounds like a cop-out, but for liability purposes we often have to limit the scope and frequency of our check-ins and inquiries – regardless of whether we bill by the hour or charge a flat fee.

5. Get someone on your team who can speak “attorney.” Remember in the movie Office Space where Tom Smykowski describes his job as taking orders from customers to the engineers, because engineers “are not good at dealing with people?” Often there is a disconnect between advisor, attorney, and client. If you have access to former practicing attorneys at an advanced planning desk, lean on them to be your interface. And, if you don’t have access to this team, developing attorney rapport within your project management staff can be paramount.

6. Respect our independent judgment. Attorneys have a duty of independent judgment, which is perhaps our penultimate (and unwaivable) duty. So, while you believe your internal efforts might keep costs down, we do have a duty to verify with the client what they want and what they are hoping to achieve. We aren’t just running up a bill for the sake of running up a bill. Often, we cannot just simply “take your word for it” – even if your software vendor, or in-house strategist, suggests otherwise. Stay in your lane, and we will stay in ours. (I know this goes both ways, so if an attorney questions your recommendations, they may not be a good fit. But if multiple attorneys question your recommendations, perhaps your recommendations are flawed.)

7. Don’t promise discounts on our behalf. Believe it or not, I have had multiple advisors tell their clients that I will give them a sweetheart deal without first asking me, and then take great offense when called out. (One even went so far as to call the managing partner of my firm to try to get me reprimanded, and was quickly laughed off the phone.) I know getting clients to follow-up is hard, but knocking down costs on my behalf is not the way to go. Remember that duty of independent judgment above? Observing that duty means we cannot be beholden to you or your promised discount.

8. Stop framing estate planning solely from a net worth perspective. For a financial advisor, numbers and net worths matter, and sometimes that number is understated based solely on the assets under management or custody. But, for estate planning, what also matters is the type and location of an asset. As much as I would love to give you a set of guidelines for clients in different net worth bands, the estate plan could be significantly different depending on the composition of assets within each net worth band. Planning for a client with a $5,000,000 Roth IRA is very different from planning for a client with a $5,000,000 interest in an operating business.

9. Lead with funding. As much as we would like to guide clients through the estate plan funding process, often our efforts are restricted to real estate, business interests, and tangible personal property. When it comes to financial accounts, while we can make recommendations, you are in a better position to implement those recommendations with respect to titling and beneficiary designations for financial accounts. It helps if you tee up this conversation, ideally before making a referral, instead of leaving it up to us to keep a client accountable for something we cannot control to begin with.

10. Respect who we represent. Often, attorneys must represent an individual or couple in estate planning (instead of an entire family) because of conflicts of interest. Even for a couple, we may only be able to represent one partner or spouse for certain gifting arrangements and/or marital agreements. For this reason, we must run conflicts checks first, because like the duty of independent judgment we have a significant and often unwaivable duty not to take on clients whose interest are opposed to those of our other clients. So, if you are working with multiple generations, respect that we may not always be able to do the same. (Note also that an incomplete estate plan summary shared with members of a younger generation can lead to later conflicts and litigation – which may also involve you if you were the source of that summary!)

11. Help with document execution. Perhaps the most difficult step in the estate planning process is getting clients to sign their documents, because this often requires an in-person signing in front of two disinterested witnesses and a notary. While remote signing and notarization of some documents is permitted on a state-by-state basis, it is rare that all relevant documents (wills, trusts, powers of attorney, and living wills) have universal remote signing authorization. If you can lead with the expectation of in-person execution of documents before making a referral, this is extremely valuable. And, if you can facilitate signing (preferably with our guidance), this is also a huge value-add. There are tons of individuals out there with unsigned estate planning documents sitting in drawers, and sometimes the simple act of coordinating signing (or discovering the objections to doing so) is the most impactful. In fact, I think a great marketing idea for any advisor who has the staff and office space to make this happen is hosting a quarterly “document roundup” – where you invite clients and prospects to come in and have their draft documents officially executed.

12. Last, but certainly not least, don’t believe the marketing hype. All stakeholders in estate planning are guilty of this, as traditional marketing approaches don’t interact well with a complex subject such as estate planning. In other words, there is nothing viral in estate planning – unlike Field of Dreams, building it doesn’t mean they will come. You cannot universally scare people into action. For example, revocable trusts are not always better than wills, and vice versa, and this conclusion isn’t just based on state of domicile – it is also based on the family system, individual expectations, the temperament of fiduciaries or beneficiaries, and even the asset mix. Especially in our modern social media environment, there is a desire to reduce estate planning to absolute statements and conclusions – but if your desire is to truly do right by the client, you owe it to them to approach this with (honest) balance instead of absolutism. Sometimes, simply meeting a client where they are is the best play – even if it means acknowledging, and honoring, the fact that they simply don’t feel ready to act and/or don’t feel like following the course of action that you are proposing (even if that is the “average” or “custom” course of action).

Whether or not we want to believe it, estate planning is a people business. And in a people business, there is always room for improvement. It is easy to look at this and say, “Yes, I know, you are preaching to the choir,” but knowing and doing are two different things. If knowledge and education were enough, everyone would have an estate plan already. And if the estate planning process involves “us versus them” or demonizing another stakeholder - whether it is a competitor, advisors or attorneys in general, inheritors of the rising generation (who often get painted with the broad brush of potential “trust fund babies” as a cheap way to build rapport with parents), or someone else - this indicates a critic who doesn’t truly believe that estate planning is a people business.