By Kristina Schneider, Practice Success Coach
At just about every single Ultimate Level event that we hold, the issue of sending clients drafts of their estate planning documents comes up. There’s always at least one, but usually several, attorneys that have a regular practice (or as part of their estate planning process) to send clients drafts of their estate planning documents prior to signing them.
It is to no surprise that these attorneys then also complain about some (or all!) of the following challenges:
- Trouble reaching clients to get them to move forward
- An enormous amount of questions
- Hours of time going through the document (sometimes paragraph by paragraph) with a fine-toothed comb with the client
- Challenges collecting balance due on the work that was completed (even if not signed)
- Overall inefficiency created in the office and moving clients through the process
- A huge pile of potential liability while plans remain unsigned and unexecuted
So, what do we (attorney Phil Kavesh and myself) recommend? STOP SENDING CLIENTS DRAFTS!
Stop Volunteering to Send Drafts
First, stop volunteering to send drafts of documents to the clients. Many times, clients are not even expecting to be sent a draft. What happens more often than not is that the client is caught off-guard that they will be sent the draft of their estate plan with this daunting task to sit down and read through this legal document and decipher what it is saying. Living Trust documents are not fun and entertaining reads! These clients end up with paralysis by analysis and without any guidelines about how to review the document, they will often set it aside with the best of intentions to get to it “soon”. This is where estate planning attorneys and their staff then have trouble either reaching clients to move forward or at least getting the client to commit to reviewing and coming back in to sign the documents.
What If Clients Request to Review a Draft?
There are going to be some clients (particularly those DIY, engineer-types) that may request a draft of their estate plan to review. Refusing to provide drafts of any kind can certainly become an issue where the client may not be happy with you. This is where we recommend having a policy around how you issue drafts of legal documents to clients. Here are the terms of our draft policy, which has worked well for years:
- All outstanding fees must be paid (outside of the signing of the documents, our firm has legally prepared the document in full and should be paid in full).
- All drafts contain the watermark “DRAFT” in big, bold letters across every single page.
- PRE-PANDEMIC – We required clients to schedule a day and time to sit in our conference room to review their plan on the premises (they are provided a notepad, pen, highlighters, and sticky notes so that they can flag pages and jot down any questions that they may have). At the conclusion of their review of the documents, we would have an attorney available to answer any questions that they may have. The clients would have a secured signing date on the calendar before they left (or if they needed more time to come back and review some more, they could schedule that at that time).
- DURING THE PANDEMIC – We moved to e-mailing clients a PDF version of their legal documents (again with a watermark “DRAFT” on each page) and we had a scheduled Zoom meeting with their attorney to go over the document and answer any questions they have. This forced them to review their documents within a specific timeframe and come prepared with their questions, comments and feedback to a meeting with their attorney.
This policy addresses a few of the major issues that happen when attorneys begin sending clients drafts. The attorney is for sure paid for his or her services, should the client then not proceed to execute the documents (or in some cases, attorneys have shared situations where the clients executed documents on their own or took it elsewhere). It also addresses the major inefficiencies and delays from sending clients drafts. The idea behind scheduling a specific day for the clients to come in and review the documents or a timeframe for their review and a scheduled meeting to meet with the attorney to answer any questions from their review forces the clients to be moved along in the process. By having specific meeting times blocked, you avoid the situation where you cannot reach the client and the whole process ceases (or even ends).
Why Sending Clients Drafts Sends a Bad Message
One argument we have heard from some attorneys about why they believed in sending drafts to the client before they signed the legal document was that they felt like they would not want to sign a legal document unless they reviewed it. This makes sense for an attorney to say, because an attorney is already versed in legal documents and legalese. An attorney would (or should), far better than the average person, understand what exactly it is that they are reading and what it means. Many (if not most) legal documents are and should be written in a manner that would be straightforward for a judge and the court to interpret. By writing in plain-English and layman’s terms, you do risk the potential for misinterpretation and the client’s wishes may not be properly executed when the time comes if that were to happen.
I know that I, personally, would not want to ever have to read through my Living Trust from front to back. It’s a great cure for insomnia and I think I would get a headache trying to understand what it’s saying (let’s not even get started on some of the added Latin terms!).
The other subliminal message that is sent to the client when you are asking them to read through a draft is that you are saying to them that you are merely a document preparer and that they are expected to review your documents and correct your work. As an estate planning attorney, you are being engaged to not only help identify planning solutions and recommendations, but you are also taking on the legal responsibility and obligation to ensure that the legal documents that you prepare for your clients are correctly drafted to carry out the very planning decisions that were discussed and agreed upon by the client. The estate planning attorney is the expert here, not the client. I certainly don’t ask my doctors to give me the name of their suggested medical diagnosis while I then go research if that is, in fact, the correct diagnosis and then ask for the full chemical breakdown, interactions, and side effects of the medication that they are prescribing. Some may argue that I should, but that is where I recognize that I am trusting in the doctor’s expertise, experience and knowledge to provide me with the solutions I need.
Now, all this said, I am certainly not recommending that clients sign their estate planning documents with absolutely no review whatsoever. Definitely don’t do that! What we do is meet with them and design the plan, schedule their signing date for anywhere from 3 to 6 weeks out, and then, at the signing meeting, the attorney meets with the clients and reviews the plan first by going over a simple one or two-page flowchart (showing how the plan was set up and how distributions will be made). The attorney shows the clients the specific pages, paragraphs and/or clauses for which evidence the individuals named for management and distribution and confirm how the plan has been set up. This process of having an attorney review the documents, immediately prior to the client signing them, is an added layer of liability protection should someone try to contest that the client didn’t know what they were signing before executing their documents.
Try It and See What Happens
We have already had several attorney clients immediately implement this strategy and the feedback that we have received is that it has eliminated a ton of inefficiencies, chasing down of clients, and outstanding unsigned plans. For some, it has even freed up individuals (paralegals or attorneys) who were having to go over the client’s questions and explain each and everything to the clients in such extreme detail.
I dare you on your next engagement to not bring up sending a draft and see what happens. And the next time that you get a client who requests a draft, see what happens when you implement the steps we discussed above before you send over a draft! I think you are going to be amazed!
ABOUT THE AUTHOR
Kristina Schneider is a Practice Success Coach here at The Ultimate Estate Planner, Inc. She graduated with a Bachelor’s Degree in Business Administration from Pepperdine University in 2004 and was hired right out of college to work for the Law Firm of Kavesh, Minor & Otis, coordinating and facilitating Philip Kavesh’s “Missing Link” Boot Camps while also providing administrative support to Mr. Kavesh as his Executive Assistant for over seven years. Through her direct hands-on experience in Mr. Kavesh’s law firm, Kristina has been able to assist numerous estate planning professionals through The Ultimate Estate Planner and, equally as important, many of their staff members, in the successful implementation of Ultimate Estate Planner’s products and systems. She is currently pursuing her MBA degree from Pepperdine University Grazadio Business School. You can reach Kristina at (424) 247-9495 or by e-mail at kristina@ultimateestateplanner.com.
early on in over 50 years of practice, an engineer client wanted to review all documents to be signed in advance of the meeting-he actually found a typo on page 26 toward the bottom of the page-this was after 3 lawyers & 3 paralegals reviewed the “standardized documents” with all of the choices. Otherwise, when a client asks to see the documents before signing, I’ve found they never “get around to it” unless we pester them every week-which creates a change in the dynamic in the relationship-especially with caller id.
Hi Kal! It’s always those engineer clients, huh? Gotta love them! It’s never fun to have a client point out a typo, particularly since as estate planning lawyers, you are wordsmiths and then it feels like it puts into question ALL of documents. But the issues you mentioned about sending over documents is exactly what lawyers are experiencing. These unexecuted and unsigned documents floating out there with clients not coming back in!
I believe not providing drafts of documents to clients for their review and comment is malpractice.
If the concern is not being properly paid for an assignment then perhaps one should not take an assignment if that’s the case.
Just my opinion.
All the best.
Hi Mike! I understand your point of view, but I definitely am not implying that attorneys should have their clients sign their estate plans without a review of the documents at all. We conduct a review of the documents at the signing meeting, where we go over the key decision points that were made and the key provisions. There are a number of attorneys who have a practice of sending over drafts of the entire estate plan to their clients and asking them to do a thorough review and come back with questions/comments. This has lead to a lot of inefficiencies and unnecessary questions (where they don’t understand what it is that they’re looking at and want you to break down the legal language in your trust document). I know of a handful of estate planning attorneys with several estate plans that have been in limbo for months (if not years) because they cannot seem to get ahold of the client or get them to respond and some of them were not paid in full either. Thankfully, I was able to advise to them the necessity of sending letters and documenting all attempts to reach them, because I do think having those plans unexecuted could potentially pose a malpractice liability even more so! Hope this helps explain our position on this!
I just returned from a very brief encounter with a law firm assistant who had her daughter and son-in-law and three kids in the newly rented office posing as clients who were on their way out of a meeting, who had agreed to stay behind and sign as witnesses on our set of prepared will/estate-plan documents. She was clearly rushing us to sign the documents without even LOOKING at them, even though in a previous conference session before documents were drafted, I specified I would insist on reviewing the documents before signing them. (Her response to that request was “I don’t make mistakes.” I chuckled because, at the time, I thought she was joking.) When I kept insisting I wanted to look over the documents before signing, she got huffy and tried to make me feel like I was creating a great inconvenience to everyone. In the past I have insisted on going carefully through mortgage closing papers to ensure everything was as agreed. I expected the opportunity to review and understand papers I was intending to sign as a part of the service of preparing them, and was appalled by this time-share salesman tactic of pushing to sign on the dotted line without even glancing at the paperwork. Not only did this woman make it clear she did not want to waste her time watching me look over things before signing, she insisted I write her a check for $200 for marking through the documents to void them, and then putting them in an envelope for me to take home and review on my own time – with the expectation I would return to sign reprinted fresh documents once I had reviewed the marked-through papers she’d given me. I was baffled and incensed by her behavior. This experience left a terrible feeling of distrust that makes me want to seek a different law firm to complete my estate planning documents.
Oh my gosh! The “I don’t make mistakes!” made me laugh. I definitely believe in reviewing the key provisions and choices that were made throughout the estate planning process and, by no means, am encouraging clients to sign the documents sight unseen and without a review of them done WITH the attorney. But, the fact of the matter is, a lot of the living trust documents that have come about are lengthy and filled with legalese, which typically goes way beyond most peoples’ heads. It’s the responsibility of the attorney to speak the legal language needed to properly ensure the wishes of the client will be honored by the court, if ever came into question. Having drafts be left in the control of the clients typically delays the process, they often times never get around to it or it goes MIA, or it ends up becoming a far greater legal/technical discussion than what’s needed. Definitely think finding the right law firm that you can trust is super important!
You act like you’re the customer. Of course I’m going to scrutinize a draft of any legal document I sign. Most of those documents are prepared by a paralegal not a lawyer. I have found significant discrepancies on two documents I’ve had legal firms prepare. I’m not an engineer but I’m not stupid either. If an attorney suggested the limitations you advocate they wouldn’t get my business.
Hi Jeffrey! Thank you for your comment and I can certainly understand your desire to ensure that your estate planning documents were prepared properly. I was definitely not trying to insinuate that you (or other clients) are stupid, but I know from our own legal documents, they are drafted in legalese, very legal, technical language that is intended to ensure that there’s no potential for misinterpretation by the court (if ever brought into question). I certainly am not advocating for no review of the estate plan with clients before they sign, but one of the reasons consumers are paying attorneys to prepare these trusts is that they are taking on the liability when and if they did not properly draft the plan according to the clients’ wishes. Even attorneys not skilled in the area of estate planning do not properly know how to interpret the legalese of estate planning documents! Our President’s law firm has been in business for 42 years, prepared over 10,000 Living Trusts, has administered more than 4,000 trusts after people have passed away, and has a very small percentage of matters ever wind up contested in court or in probate court. All of our attorneys are Certified Specialists in the area of Estate Planning, Trust & Probate Law, so I do think that you get what you pay for and that there also comes a point where you trust the experts to properly ensure that your legal forms are properly prepared. The biggest issue with sending drafts for most law firms is that those clients often never come back around and actually end up executing their documents (or it takes months or years). In that time, they risk something happening to them and then their estate plan was never even executed. I think there are more downsides than benefits here.