Going Solo and Running a Small Estate Planning Practice – Part III

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part III”.  These materials are based, in part, on materials I prepared for a 2012 seminar hosted by the Maine State Bar Association entitled “Essentials For Solo and Small Firms Practitioners”.

In Part I of this series I discussed some introductory thoughts about going solo, practicing with precision and practicing efficiently.  In Part II of this series I continued the discussion of “Practicing Efficiently” and began my coverage of “case management”.  You might call this your work flow or work process but I’ll just call it “case management”.  I use the term “case management” broadly and believe it starts when, or even before, the client walks in the door and ends when your last client has been turned over to someone else and you retire or die.

File Management

Why bother documenting your case management process?  I think it comes down to this:  It is not a question of whether or not you will make mistakes in your practice.  You will.  The only questions are: 1) how substantive are the mistakes, 2) are they correctable or covered by malpractice insurance; 3) once you have made them (or, better yet, seen them coming) do you keep making them or do you adjust and correct your process/procedure so avoid making the same mistakes again or to minimize your ongoing liability exposure; and 4) are you even aware of the mistakes you are making?  Outlining your process, I think, will help you ensure a consistent approach and, I also think, help you make adjustments to the process and to consistently implement such adjustments in your process in the future. Ideally, following the processes you put into place will safeguard you when practice, or life, gets hectic and your attention is elsewhere.

1) Managing the Estate Planning Drafting Process: After the initial client meeting I prepare a memo to the file reviewing that meeting and work up any tax analysis or asset division that may be required to the extent I am then able.  I try to schedule this memo for right after the meeting.  I have developed a custom template in HotDocs that makes this process less drudgery than it might otherwise be – though my law partner still sees it as drudgery.  Using HotDocs to develop customized templates to help draft routine documents that are susceptible to being outlined is very helpful and helps avoid overlooking something in the process.

To avoid a rushed job, I do my initial estate planning drafts very early on after the initial meeting, often that same day or within a day or two after I meet with a client.  Doing drafts early and giving them time to sit before you review them again is a good practice for many reasons.   First, it ensures that your documents reflect your most recent memory of what the client wanted, which hopefully were recorded in a memo to the file.  Second, early drafting helps avoid future delays and/or a rushed product as the deadline approaches.   Allowing for the passage of time between drafting and the review process increases your ability to see the drafts objectively. When reviewing your documents, do so with an objective process in mind.  This helps ensure that your documents are tight.  I have developed a checklist that I use to review every Will and have made this available at http://www.smiliegrogers.com/attorney-to-attorney.html.   Don’t want to use a checklist?  Don’t think you need it?  How about your heart surgeon?  Do you want him or her to use a checklist?  Right – I thought so!  Of course you would!  We all have off days and checklists are a good means to safeguard your process on those days as well as any other day.  For attorneys just starting to practice, checklists are a great way to force them to internalize the review process a more seasoned attorney might naturally go through without an actual checklist.  Don’t leave your clients’ matters to chance.  Use a checklist for every document you draft and for every process in you estate planning practice that matters.  Admittedly the creation of checklists are time consuming.  You don’t always have to reinvent the process.  I collect checklists as I come across them and save them up to work on and incorporate into my practice on days when I feel less inclined to work on client matters.

After this week or two has passed, I review the entire file (my memo, their packet, other documents, the draft estate planning documents, etc.) and revise the draft documents as needed.  Unless I have any further questions for the client, at this point I will contact the client to schedule the next appointment to review and sign their draft documents. I generally don’t send out drafts because: 1) clients often won’t read them, 2) clients often won’t understand them without some explanation, 3) it is an additional expense and time saved, and 4) not sending drafts tends to decrease the total time required to complete the matter because it often takes clients a long time to review drafts or to admit that they simply won’t review them and that we need to meet to review them.  If the Will or Trust is likely to be the subject of dispute later on, I will send out drafts out in advance of the meeting or schedule a review meeting followed sometime later by an execution meeting.

If in the meantime the client has suggested changes, either as a result of questions I have asked or that they have independently sent to me, I memo my file with the required changes and then revise the drafts as required.  Try to develop a habit of documenting the need/request for the changes first and then making the changes – as this will help ensure you actually document the reason for the change.  

I then set the file aside again until the day before the meeting and give it a final review and review the drafts again from top to bottom and walk through my checklist review.  If changes are needed, I memo the file if necessary and make them but usually at this point any changes are not substantive.  I try to avoid reviewing drafts the day of the meeting but do usually review my memo again so that I am ready to pick up where I left off with the client.  

I review and explain the documents to the clients.  I don’t bill for this time (not hourly anyways) because I want my client’s full attention and don’t want them worrying about how much this review is costing.  Since I bill for estate planning documents on a flat fee basis, my flat fee factors in this review time.  Not billing hourly also puts pressure on me to be succinct and have my execution process down flat.  Even if I bill hourly for other time, I still have found that the review and execution meeting is best not billed hourly but that is a matter of preference.

If a substantive change was made during the document signing, I make a note of it with a memo to the file.   This is an important step and should not be overlooked as it may come back to bite you.  If significant changes were made, I might even have the client sign my memo to the file and scan it.  For the sake of those who begin to practice without the benefit of a mentor, I will repeat the last point.  Memo requested changes just as though you were a contractor building a house.  If the owner wants a new window where the plans did not call for one, just memo the change on the plan and have them approve of it (or at least make mention of it in correspondence to the client).  If you don’t, the finished product won’t reflect what you have in the file and that may create a problem down the road.

After the meeting, assuming the originals were executed, I scan the originals and save them to the client’s digital file. I do this right away.  If the client wants paper copies, I prepare them at this time too, though I may not bind them until later.  This helps move the ball forward and besides, originals make the best copies. These days I often deliver copies to my clients by using an estate planning USB drive.  I order 50 USB drives at a time.  Many clients like having PDFs on a USB drive instead of paper copies and it saves me time and recourses to use a USB drive instead of having to bind the documents.  To encourage clients to use the USB drive I use to offer a small discount for its use but have found that a discount is not necessary.

I place the originals in envelopes (large mailing envelopes) I already have ready for this purpose in the client’s file (see above) and secure them in my vault. I record that vault entry in a Will vault log.

At this time I mail any documents that need to be mailed such as: 1) Advance Health Care Directives to physicians; 2) deeds to the Registry; and 3) letters to former estate planning counsel.  I likely will also prepare a draft letter to client transmitting USB drive or bound documents and terminating my representation in the matter.  I use to take time to describe the documents being transmitted but no longer do or don’t do so in detail.   First, clients don’t seem to want to pay for this additional work and, least I should not be completely accurate in my overview, I have developed a concern that mistakes in such a letter might work against me even if the underlying documents were done correctly. In short, I fail to see a distinct advantage for long complex overviews and only see disadvantages.  However, when the documents are complex enough, I will include a visual reviewing the overall plan and dispositive provisions.

2) File Closing: At this point I usually break down the client’s physical file and prepare to close it.   All originals, or anything that needs to stick around after 8 years goes into the Will vault with the originals.  I use the same envelopes I use to store originals in my vault to store the contents of a client’s file.  I store these envelopes in boxes that I receive when I order a case of paper from W.B. Mason.    I make labels that identify these file boxes (Example: “Confidential, Box 2 File Storage for 2011-2012, Shred in 2020).  I scan and save the estate closing form which documents the file closing process.

I log the placement of the file envelope in a box log dedicated to this purpose.

Sample:

Box 5 Inventory Sheet

Shred in ______

Location of Box: __________

Added to Master Tracking List:   ___________

I log the box log to a master tracking list.

Sample:

FILE STORAGE – MASTER TRACKING LIST

I have prepared an estate planning file closing checklist and walk through it and actually check it off as I close each file.  It essentially follows the step above but includes some additional items if real estate was involved.  I cannot imagine taking the risk of closing a file without using this checklist and also feel that the checklist helps force me to finalize the closing of the file rather than having that process drag out over days, weeks or even months.  When I am done with it, I scan it and add it to the digital file and the paper file.   At this point I have no doubt that the file is completely closed (except for sending the client their copies or USB file) and that I can move on safely and without concern that something was left undone.  I am not going to share my file closing checklist, come up with your own – it’s your practice – so make it a practice!

3) Document Vault:  I think having an inventory of your document vault is very important.  Not only do I think that they are an important from an ethical or general “fiduciary” perspective, I think they can serve as a useful tool.  They can, for example contain detailed information about your client’s general plan (the type of funding formula used, for example), whether there are known adverse parties (such as a disinherited son), whether the client is living or dead, whether the will has been probated or if the probate is closed and when, whether or not you are named as an agent, Personal Representative (Executor) or Trustee, etc. The earlier you start out building such an inventory, the better.  I have built my inventory in Excel, rather than in a word document, and think it is well suited for this purpose even though I am not using many of ordinary features of Excel.

Coming soon: Going Solo and Running a Small Estate Planning Practice – Part IV, wherein I will quickly review some practical business issues you might find helpful if you are about to go solo.