Preparing a Will By The “Family Lawyer”

I have been to many of my clients what may be called the “family lawyer”.

Within the past 30 years I have prepared many hundreds of wills. When preparing wills where I have represented more than one generation of the family, there are additional considerations I need to review.

The purpose of a last will and testament is to have the property go to the persons or entity to whom the testator/testatrix (the client whose will is being prepared) wants his or her property to go. If I am preparing a will for the parents of children I am currently representing or have represented in the past, there may be a conflict of interest between the parents’ intentions and what the children will want (present or former clients expect). A way of dealing with conflicts of interest situations is to have the parents and children sign a waiver that each side understands the present conflict and is shown the types of present and potential conflicts of interest. If there is a close relationship and many conflicts of interest between the parents and children in this example, it may be best for me to refer each side to two other unrelated attorneys. Also because of conflict of interest issues, I will not represent a couple where the parties have been married to other persons and have other obligations from divorce orders or agreements. There are other situations where there are conflicts of interests too many to cite, but again, it may be best to have each party go to other unrelated attorneys.

The bottom line is that the family lawyer must be certain that the property will go to the person or persons to whom the testator/testatrix wants the property to go. If the testator is elderly, it may be prudent for the elderly client to undergo a physical exam and, depending on the needs of the elderly person, to obtain an MRI of the brain as a way to avoid the potential of a will challenge/contest. The MRI may show that there was fluid in the brain that affected the testator’s capacity to have the requisite intent to have a will prepared. Where there is a great deal of money in an estate and someone feels left out or that they did not receive what they thought was a fair bequest, those people might invest in challenging the will and use the MRI results to their benefit in the challenge. If the MRI shows no reason for concern, then it will be more difficult to contest or challenge the will on the basis of incompetence.

Who do I represent? When a child brings an elderly parent to see me for the preparation of a will and the elderly parent and the child both meet with me as their family lawyer, the parent is the client and it is the parent who signs the retainer agreement and pays the retainer fee. As the family lawyer, I encourage meeting separately with the parent and not with both. This is to avoid future allegations that the child was attempting to unduly influence the parent or coerce the parent into leaving the bulk of the estate to that one child. It is important that I meet with the parent/client in the absence of the child especially when the parent tells you that he or she wishes to give more to the child than other siblings or, worse, to eliminate another child. We have ways of dealing with this issue as there may be valid reasons for giving a larger or no bequest to other children. However, we strongly encourage somewhat wealthy parents to leave, for example, a minimum of $1000 or more to each child. This is to avoid will challenges or contests.

Often in drafting a will for wealthy individuals, an estate plan is required. The family lawyer may not have the expertise needed to prepare a proper estate plan or it may not be as cost-effective for a family lawyer to do the researching of tax issues as it would be to consult with a financial adviser or accountant for that service. Here it may be best for the family lawyer to work with a tax attorney who concentrates in estate planning. There is a strong need for effective communication between the tax lawyer and the lawyer who drafts the will.

Fred Antenberg has over 30 years’ experience in the drafting of last wills and testaments and related documents as well as with administrating wills and estates in Howard County and surrounding counties of Central Maryland. The fact that Fred understands and appreciates how the preparation of a will affects the later administration of the estate is a valuable tool in his representation of clients.

Call Fred at 410-730-4404 for a free initial consultation in regard to wills and estate planning.