Often an estate planning client will call our office to make an appointment and will ask “Can my kids come?” Our answer is always “They can come, but they will have to wait in the lobby while we talk.” Clients are often flummoxed about why their family, or best friend, or financial advisor can’t come to their estate planning appointment with them. Here are a few reasons why we think it’s important.
Sharing information
When you come into an estate planning appointment, we want you to be able to share all of the relevant information. Sure, we ask about who should be the beneficiaries in your estate plan and who should be in charge if you become incapacitated. But, we ask about your family situation, your financials, and your health. Sometimes the conversation goes in directions clients don’t anticipate and having a family member in the room might limit their ability to answer honestly or completely.
For example, would feel comfortable admitting that you don’t want your estate plan to benefit your child’s spouse if that child was sitting in the room? What about that you don’t think one child is a good money manager? Or going into detail about a drinking, addiction, gambling or health problem? You might hold back some information if you know someone close to the situation is listening.
Even if none of those situations apply to you, or even if you wouldn’t hold back, I don’t know that until we talk. Attorneys have an ethical obligation to keep client information and communications confidential. I am duty bound to keep the information you share with me in an estate planning meeting confidential. This pertains to the details of your estate planning itself and all of the information you share leading up to the estate plan. When someone else listens in, the information is no longer confidential.
Listening to you (and no one else)
Your estate plan is your estate plan. It’s important that it reflects your wishes. When the financial advisor starts relaying your goals and the kid start chipping in on what needs updating, it quickly becomes unclear what your wishes actually are. By talking to you alone at first, we can lay down the foundation of what your situation is, what your goals are, and what you actually want.
What we don’t want is for you to be in an estate planning meeting and have the following situation happen in a meeting:
Client: I want to leave my house to Son.
Financial advisor: Are you sure? Son lives far away.
Client: Yeah, you’re right. Daughter is in town. I will leave it to Daughter instead.
It seems innocent enough, but does the client actually want to give the house to Son or Daughter? Is there a reason they want Son to have the house that they don’t want to share with the financial advisor? Or, is there a reason why they didn’t leave the house to Daughter in the first place? If someone were to challenge the trust or will containing the provision, there would certainly be an argument for undue influence.
Even if it’s not as obvious as the pretend conversation above, if a friend, family member, or professional is sitting in the meeting, it’s more likely that there is an argument for undue influence in the future. Even if they don’t say anything- it’s best to just leave them out all together.
If you are unsure of what you want, talk to others before the meeting. Meet with your financial advisor or accountant about your situation. Talk to your friends and family about what amount of responsibility they would like to take on or want. Listen to their opinions, consider them and then make a decision. It’s important that your wishes and decisions are front and center.
Capacity
When meeting with a client, part of an estate planners job is to determine if they have the capacity to understand the changes they want to make to their estate plan. Part of that analysis is meeting with that client privately and determining if they understand what assets they have and how they would like them to be distributed. It can be hard to determine how much a client really understands when someone else answers questions for them.
Clarity
Attorneys have an obligation to make it clear who their client is and who they represent. If we are working on your estate plan, I represent you (and maybe your spouse if we all agree to it and you understand the inherent conflict). Not your kids; not your accountant; not your best friend. You!
Attorneys also have an ethical obligation to avoid conflict of interest. Your kids, your best friend, and your accountant may have similar goals and interests as you, but your goals and interests are not the same. Conflicts of interest can quickly arise between even the closest of families with the best intentions. If and when those conflicts arise, you can take comfort knowing that your attorney represents you and only you.
In conclusion
We understand that many of our clients have well meaning family, friends and professionals who want to help. We love to hear that clients have a built themselves a network of support.
Sometimes, clients decide to share their estate plans and information with their network after the fact. They don’t have to, but they can if they want to. Just keep in mind, that life happens and estate plans change. Just because a plan is your plan now, doesn’t mean it will be your plan forever. Not going into too much detail up front can prevent confusion and hurt feelings later if, down the line, the plan changes.
Regardless, if you choose to share your plan with people in your life- that’s your choice. But, when you meet to us, we will want to meet with you only. If you do have a friend or family member, they will be asked to wait in the lobby. It’s not because we don’t like them or are trying to offend. It boils down to this: We want to protect you!
