General Estate Planning Questions

Why do these documents seem more complicated and convoluted than I expected?

Much of the estate planning, especially in regard to the Last Will and Testament or Revocable Living Trust, requires language that seems non intuitive, in order to navigate through the hopscotch of IRS and state regulations required for us to accomplish your goals.

In addition, many of the documents deal with all the morbid improbabilities of life - not just what we all expect to happen, or what will probably happen, but all the things that could happen. That takes more planning than just assuming that your life will unfold as expected.

Finally, and related to both of the above points, the more control and options you want or need, the more complicated the language needs to be.

Okay, I got the documents and I am looking through them. I have some questions, I want to change some things; is that allowed? What does the flat fee we agreed to cover? What doesn’t it cover?

When we met in my office we agreed to a flat fee to draft, revise and finalize your estate planning documents. That flat fee includes all the documents we discussed, as well as most revisions to those documents. Changes to names, ages, powers, etc., are always covered by the flat fee, as are discussions regarding the meaning or purpose of provisions, and subsequent changes to the provisions. However, sometimes clients wish to rewrite the provisions themselves, then request that we review these sorts of extensive revisions as part of the flat fee process. Generally, we will try to accommodate clients, but sometimes the reviews and revisions go on for too long or require too much review to be considered part of the original process.

Do we need to meet to discuss my questions, comments, etc., regarding my estate planning documents, or can we do it by phone or email?

While the vast majority of questions can be dealt with by phone or email, or several phone or email conferences, if it is necessary to meet again to go over specific or particularly complicated issues, we are happy to schedule such a meeting.

When this is all done, and the documents are signed, who keeps the original documents, what do we get back from you, what happens next, and, by the way, what happens if you retire or die?

We typically retain the originals of your documents and keep them in our Will safes. We provide you with digital copies, as well as conformed copies, if you wish. Conformed copies have the information that indicates that the originals are filed with my office, as well as my contact information. If I retire it is incumbent upon me to make provisions to notify you. That said, I am not retiring anytime soon. If I die, my partner or associate would contact you to let you know what had occurred and give you the option of whether you would want your documents returned to you or retained by the firm.

Are Estate Planning expenses tax deductible?

As a general matter, legal services are considered personal expenses and are not deductible. However, estate planning costs may be deductible in three instances, as set forth by the IRS in Wong, Tax Court Memo 1989-683:

  1. When the estate planning costs were incurred for the production or collection of income;
  2. When the estate planning costs were incurred for the maintenance, management, or conservation of property that is being used for the production of income; or
  3. When the estate planning costs were incurred in the course of tax advice and tax planning.

This means that in most instances, a portion of your estate planning costs are probably tax deductible. The amount that is deductible depends on your specific estate planning needs. For example, if you estate includes any income producing properties such as a small business or a rental property, your plan might meet the first two circumstances outlined above. If no business entities are involved, however, the deductible amount might be substantially lower. So, in general, costs relating to the preparation of wills, trusts, and other testamentary documents are not deductible for income tax purposes, but costs relating to estate and gift tax calculations, tax planning, and return preparation may be deductible. Take note that tax planning, as a general matter, is usually a deductible legal expense.

Why are the worst case scenario provision in our will/trusts identical?

The worst case scenario provision determines the distribution of your assets if you and your loved ones were to pass away simultaneously. In the event of simultaneous passing, the order in which you died would have to be established for the purpose of administering your estates. To ensure that one spouse’s wishes are not honored over the other’s in the event of simultaneous passing, we often provide that the worst case scenario provisions in your will are identical. Identical worst case scenario provisions ensure that in the event of simultaneous (or near-simultaneous) passing, beneficiaries that you both agree upon receive distributions. If the worst case scenario provisions are not identical, then everything would pass pursuant to the will of the spouse deemed to have passed second, leaving the “worst case scenario” wishes of the other spouse unfulfilled.

Our Attorneys

Norman B. Handler's Profile Image
Norman B. Handler, co-founder of the firm, and beloved friend and mentor, died on December 26, 2020. Norman’s greatest trait as an attorney was not his legal knowledge, his tax experience or his inexplicable love of forms and calculations – i… Read More

Marc S. Levine's Profile Image
Marc S. Levine has been practicing law since 1992, all with Handler & Levine, LLC, and its predecessor firms. Marc regularly assists individuals and families in preparing their estate plans, including drafting their wills, revocable trusts, trust… Read More

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