More than attorneys can add value to estate planning

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By Jessica S. Ferguson

Estate planning can be a complex process encompassing various legal, financial and personal considerations. Thus, an estate planning attorney might recommend that a client enlist the expertise of additional professionals such as financial advisers, counselors, insurance professionals and mediators to ensure comprehensive and tailored solutions. By assembling a collaborative team, the intricacies of estate planning can be navigated with confidence, optimizing strategies to meet clients’ unique goals and safeguarding their legacies for generations to come.

Mediators in probate litigation

To remedy litigation cases before trial, South Carolina and North Carolina mandate case parties attend mediation in civil (Common Pleas Court in South Carolina and District Court in North Carolina) and family law matters. This encourages civil resolution of disputes and lightens the litigation docket of courts.

However, there is no mandate in either state for mediation in probate litigation cases. Although probate courts are considered “lower level” courts underneath other civil courts, they are home to intense, detailed and lengthy litigation, often between family members of deceased loved ones and vulnerable adults. Such cases are often tedious for the parties, their attorneys and the court; probate litigation is often family-ending, breaking familial trust and eviscerating family ties. Further, probate litigation is just as complex — if not often more so — than other civil cases, working through the probate code, case law and ethics while navigating grief, greed and grim circumstances.

Due to the nature of probate litigation matters, the best practice is often to seek mediation. This offers the parties the opportunity to gather information, civilly debate, and work together to come to an agreement, resolving the case on their own terms and, hopefully, maintaining family relationships. Civil mediators are becoming increasingly knowledgeable about probate disputes, and the more often probate cases are taken to mediation, the more exposure mediators will have. Although not legally required, attorneys who practice probate litigation should certainly consider taking their cases to mediation, which might save time, heartache and even family ties.

Professionals in estate planning

Estate planning attorneys are tasked with looking into their clients’ crystal balls and preparing for all reasonably possible scenarios — from bodily disposition decisions to marital deduction possibility to the protection of grandchildren’s inheritances and all other life variants. We draft the best-fitting advance directives for each client, appoint agents, give authority to personal representatives, create limited liability corporations, structure trust disbursements, make death-bed care decisions and so on.

However, to provide truly holistic life planning, encourage your clients to engage financial advisers, life insurance and long-term care policy agents, pre-need funeral directors, and, often, grief counselors. This is holistic asset protection.

• Financial advisers: A good estate plan will solidly protect your clients’ assets during their life — with a trust or LLC — and after their life — with a trust, will or both. (Note: This is for example only, as there are many estate planning tools.) However, without professional guidance from a well-educated financial adviser, a client might not receive vital financial literacy tools. For example, an individual might simply not possess good money-management skills, needlessly shrinking the estate, or might miss the opportunity to grow funds through investments, enlarging the estate. Ensure your clients connect with a reputable, trustworthy financial adviser who can offer holistic financial protection.
• Life insurance and long-term care agents: Insurance agents are another extremely important nonattorney professional. Often, life insurance is a pillar of proper estate plans, ensuring financial protection after the loss of a spouse or parent or bolstering an estate at death. Too many times have I had to break the news to a client that, because their spouse left no life insurance, they would need to sell their home. Advising your clients to consult with a trusted insurance agent might save grief down the road.

This also applies to long-term care insurance. We are all hyperaware of the ever-increasing cost of living facilities and the fact many people are being priced out of this end-of-life care option. If paying privately and not incredibly wealthy, the funds often run dry, and many can no longer reside in necessary care conditions. While Medicaid is a possibility, facilities that accept Medicaid are typically not preferred. Connecting your client with an insurance agent who is well-versed in long-term care policies can help them strategize their future care options.

• Preneed funeral directors: Part of holistic estate planning incorporates your clients’ bodily disposition desires, but also their funeral service arrangements. Preneed planning proffers several benefits — locking in the funeral cost, allowing your client to select their ideal services, removing the burden of funeral planning from the next of kin and providing peace of mind. Preneed plans are insured, meaning if your client moves, the plan will be transferred and honored in their new domicile. While not required, I suggest my clients meet with a preneed funeral director to consider adding a funeral plan as part of their holistic estate plan.
• Grief counselors: Finally, estate planning can be an emotionally difficult process for some; it is not always easy talking about and preparing for the end. When useful, encourage your clients to connect with local grief counselors to guide them through the psychological process of estate planning. I often make this suggestion to my probate administration and litigation clients. As attorneys, we’re always happy to lend an ear and serve as a shoulder to cry on, but clients might need to meet with a professional certified to offer guidance through grief.

Jessica S. Ferguson practices with the estate and business planning team at the Greenville, South Carolina, office of Turner Padget. She is licensed to practice in North Carolina, South Carolina and Tennessee.