COVID-19: What We’re Doing Is What We’ve Been Doing
From its inception, The Law Offices of Max Elliott has used technology to provide safe, efficient, secure, and cost-effective services to our clients. Over the years, our systems and processes, which were new to the legal industry, have been slowly adopted by other firms. And we’ve continued to evolve and grow into providing even more convenient and secure services for our clients. We were the first solo firm in Illinois to use a secure, encrypted client portal, which is now critical in light of COVID-19. Using our portal, we collaborate with clients about their legal matters safely and securely. Clients can upload or download the instruments and information they need without leaving home. Potential clients can complete intake online or over the phone. We were one of the first small firms in Illinois to accept credit or debit card payments. From the beginning, clients could forgo using postage or coming to our office to drop off payments. Appreciating the busy lives of clients, we routinely teleconference with clients and provide “house calls” for signing conferences. Recognizing the benefits of technology and productivity, our team members are accustomed to telecommuting. Valuing our workers, even as a small firm, we already have a paid sick leave policy, among other benefits. So, our firmwide processes, which are critical to keeping clients safe during the COVID-19 public health crisis, are processes that we’ve been using for years. We’re not changing much about how we work because we were already providing safe and secure client services. And we thank our clients and vendors for helping us provide a safe and secure law practice for all the individuals and families who comprise our firm\’s universe.
5 Years and 5+ Lessons!
It\’s true; \”time flies when you\’re having fun!\” So The Law Offices of Max Elliott is looking forward to 5 more years of \”fun\” or, more precisely, taking great satisfaction from servicing our clients as diligently as possible, protecting them, their interests, and future generations. To prepare this \”Anniversary\” piece, I reviewed our inaugural article to determine if 5 years\’ experience would cause me to change any of the positions I held at the beginning of this sojourn. One: A young married couple with a home, moderate income, and no dependents AND no wonky family dynamics could likely have a will prepared online. However, I would still recommend that an experienced attorney in their jurisdiction review it. With that exception – and the fact that I need a new photo, I agree with me on everything else. Okay, now what? What are additional takeaways from 5 years as an attorney providing wills, trusts, advanced directives, guardianship assistance, adoptions, negotiations between beneficiaries and fiduciaries, winding up estates, and wealth preservation guidance? Families need to talk more and talk sooner, reaching across the generations to gather history, empathy, and love. Today\’s world is too unpredictable and many of the squabbles are based on a lack of understanding because we haven\’t taken the time to actively listen to our loved ones. AND tolerance goes a long way. Most lawyers need to listen way more, talk way less, and be willing to educate and collaborate with our clients. Just because we\’re in the 21st century doesn\’t mean that 20th century values involving civility, integrity, and reasonableness should be not applicable in all of our professional relationships. Technology cannot send you a referral and cannot sooth the emotions of a disillusioned client. If I cannot bring my integrity into your sandbox, I can be happy playing in another sandbox, regardless of the plastic toys offered. Life is precious. Breathe, laugh, and yes, smell some flowers. The Plus: It is awesome being in on amazing, wonderful, legal change. When our office launched during Pride month in 2011, we were in the battle for marriage equality and 5 years later – it is the law of the land! \”NO MO DOMA!\” is a reality and, while the fight for rights in the LGBTQ community along other very important lines still goes on, the LGBTQ community and its allies, such as our firm, can rest a tad easier now on the marriage equality front. What an awesome 5th Anniversary Gift – Happy Pride Month! I don\’t want to name names but let it be sufficient to say that our firm has had amazing supporters from all walks of life during these last few years. It is our hope that we continue to learn and grow and provide the services that make our supporters proud and clients happy. Thank you all and here\’s to the next 5!
80% Get It Wrong…
In the digital age, it\’s rare that potential clients haven\’t done research before contacting our firm. So, when speaking or meeting with them, it\’s important to hear what they\’ve found. Sometimes it\’s factually correct, but not for their case; sometimes it\’s factually incorrect with respect to their case; and often the pieces just don\’t fit together at all. So then I say, \”Think about this…\” And, as colleagues continue to criticize DIY services, as online legal documents services proceed with IPOs, and as folks continue to ask me to opine, I thought these few facts may be worth sharing:
JD, CPA, CFP – What\’s with the Estate Planning Alphabet Soup
When designing an estate plan for a new client, I usually ask if the client has a financial “team.” “A team?” you may wonder or say to yourself, “I don’t need a team because I don’t even have an estate! I just need a will, if that.” On the contrary, as mentioned in a previous post, you probably do have an estate and it’s likely larger than you think. So yes, you probably need a team. Consider this analogy: To maintain overall good physical health, you need a primary doctor, a dentist, and, if you’re female, a gynecologist. Now these providers may only consult with each other once, if then, but they are certainly aware of the other\’s existence because your good health requires it. An estate planning team works in a similar way, albeit a little closer, and is essential, especially if you have loved ones you want to protect. So here\’s the line-up: Estate planning attorney: Does more than draw up a will or a trust, and while online DIY services offer estate planning, if you use one, be sure there\’s a review by an attorney who understands the probate, trust, and tax laws in your state. In addition to the many laws, an estate planning attorney must also have a good command of the various, related documents needed to protect you and your family now and in the future. He or she should also possess, at least, a basic understanding of the federal and state tax implications of the distributions and powers designated within the documents, near-term financial planning, and retirement planning. Certified Public Accountant (CPA): Must take a licensing exam, work for as an accountant for about 5 years, and take continuing education courses to retain certification. Accordingly, a CPA’s knowledge base is deeper than a non-certified accountant. A CPA whose specialty is estate and income taxation typically consults with your estate planning attorney to ensure that the tax implications for you and your beneficiaries are minimized. Certified Financial Planner (CFP): While not required for CFAs, a CFP must take extensive exams in financial planning, taxes, insurance, estate planning, and retirement. He or she must also take continual financial planning courses to maintain their certification. A CFP performs the research needed to help determine how best to allocate funds to reach your personal goals and the goals of your family and consults with the estate planning attorney to ensure beneficiary designations are accurate and that allocations and distributions are aligned with your goals and unique investment style. In a nutshell, your estate planning team is a group of capable and highly qualified individuals who, together, help to ensure that: The intentions underlying your financial and personal interests are legal and accomplished during and after your lifetime; The tax implications of those interests are minimized; and The financial interests are secured and grown if possible. *Note: Different states have different rules on fee-splitting arrangements, but typically attorneys cannot accept fees from non-attorneys, at least in Illinois, which is a healthy check-and-balance on your team.
Saving Parents\’ Precious Resources
Occasionally, I’m stunned by how little current clients\’ or customers\’ needs are considered by service providers. As an estate planning attorney for “non-traditional families,” one of my key concerns for my clients is providing them with services that are not only excellent, but also efficient. Nontraditional families include women who are heads of households with children and, as the primary wage earner, they have 3 issues to continually manage: Financial resources Time Parenting While The Law Offices of Max Elliott may not be able to assist in quality parenting, we do provide services and use tools that bring efficiency to the first 2 issues. In plain English, we help our clients by saving them money and time. Estate planning, as is said so often now, is not just for the very wealthy. So our services allow you to determine the scope of estate planning protection that fits within your financial framework. Are you a median wage earner who rents with a teenager living at home but working his or her way through college? If so, then an estate plan that encompasses education planning and a Qualified Personal Residence Trust, or “QPRT,” may be unnecessary AND we won’t turn you away. We will simply recognize that more than likely, to protect your family and yourself, you will and should want to start with simpler vehicles, which is what you can obtain for probably less than 1-2 months’ rent. BUT… “It’s not money, but time,” you say. Well let’s look at Joan: Joan is an HR executive at a Fortune 500 company and earns more than the median. Plus, she’s up by 5 AM to workout, get the kids off to school and daycare, is working her smartphone by 7:30 at the office by train by 9ish, eats lunch at her desk, is on the 5:15 and cooking or ordering in by 6:30 but answers her email until 10:00 PM. Weekends are for catching up on the latest SHRM reports she missed while taking the train during the week. Joan came up along the ranks in HR, so it would be unwise for us to waste her time talking about 401(k) planning and HSAs. She’s a tech wizard who lives in the ‘burbs and works downtown, so I’d also never think to ask her to commit to only in-person meetings when a teleconference or an exchange on our secure client directory will suffice. Speaking of that directory, if you are the mom, renting, and with the teenager or a parent with kids and no time like Joan, or someone who just wants to save time and money, our secure online portal that is available for clients makes it easy to engage in substantive, secure conversations, exchange documents, and pay fees all in one place. It’s not an open e-mail or even e-mail on our website. It’s a secure, designed specifically for lawyers and used strictly by us and our clients. So, in concluding this shameless “use our service” self-promotional piece, I’ll just say that whoever you choose as your legal services team, make sure that your precious resources are considered and used wisely.
Heading to the Mall for a Gift and a … Will
An interesting concept that has already been established abroad is the ability to purchase testamentary documents at malls. Capitalizing on the concept and holiday traffic, during this past festive season, a couple of attorneys in Florida set up a legal services kiosk offering various legal services including \”basic estate planning.\” This set up involves dynamics that are both troubling and admirable. Estate planning is a complex practice, especially if you\’re approaching it from the perspective where your main focus is individuals with relatively large estates who want to protect their families but also seek to minimize taxes. Plus, considering the newer comprehensive approach, which incorporates using other financial professionals, estate planning is a relatively complex practice. This approach requires a more than basic familiarity with a number of disciplines because this approach uses a \”team\” of advisors, with the attorney at the top of a pyramid, with a financial planner and an independent CPA at the base. Finally, needless to say but I\’ll say it anyway – the tax laws are always changing. Still, it\’s doubtful that individuals with large estates who are mindful about the fees they pay will consider a kiosk; that\’s just not how they do business. On the other hand, a demographic does exist that needs testamentary documents to just protect family members in the event of a death or incapacity. The \”basic\” will and power of attorney would likely be applicable in this situation. Yet, I am troubled by lawyers who don\’t use these documents regularly and understand how they intersect with other law and regulations, especially powers of attorney and health care directives but offer them with a little counseling as a holiday special. If a gay or cohabiting couple approach these attorneys for wills or estate planning, there\’s no 15 minute answer. Finally, the middle class is struggling as it is; it cannot afford planning mistakes with the small amount of resources it has managed to maintain during the financial crisis. I absolutely agree that trying to help the middle class is admirable, but this setup may cause more harm than good. If the motive is helping the middle class, they could offer documents and a free review without the 15-minute time constraint? But the question then becomes do the attorneys have the requisite experience to know what to look for during the review.
Thanks for the Flux*
In a recent newsletter, I gave thanks to what means most to me personally – my relationships. Having given thanks on a personal level, I now turn to what I am thankful for professionally. I am ever so grateful that the legal profession is in a state of flux and, what many of us think, is a period of dramatic transition. Liking “change” may sound odd coming from one whose profession is based on the cardinal rule of “precedent.” Still, I like good ole flux, especially when it’s followed by progress. Dating back to the early 17th century, the word, “flux,” meant a sense of “continuous succession of changes.” Works for me. I have witnessed on numerous occasions non-stop, sequential, flips and flops that have brought about positive and progressive steps for humanity. Often, while in the moment, we don’t recognize turmoil as the benefit it is because the moment is painful. However, here is where hindsight is acceptable and we can nod, \”Yes, that was tumultuous and painful, but worth it.\” So I am optimistically thankful of the continuous succession of changes occurring within our profession, most of which, like other professions, have been brought on by technology. It started with computers, then e-mail, next the Internet, and now this “cloud” thing. Computers made writing and editing a faster process, whereby time saved could have been money saved by clients. Hmmm… E-mail, especially within firms, made communication between colleagues collaborating on cases easier and faster. Still, occasionally something would get lost in the translation, especially since the business world frowned upon emoticons. Plus, sometimes, instead of getting lost, something would be set free, to everyone, e.g., when a poor associate accidentally hit “reply all” and client confidentiality was no more. 😮 Moving on, we entered the age of the Internet, where “surfing” became more than something LA lawyers did when they finally took a vacation. It was also the age where an occasional law clerk wished they were in the ocean when, instead of performing online research, they were surfing without permission and blasted by a pornado. Today, a few daring legal eagles are embracing “the cloud,” online storage and project management systems that allow for not just storage but client and team collaboration. Technology dramatically streamlined many of the processes lawyers depend on, decreasing the need for all that file cabinet space – and exorbitant client fees to pay for it, allowing for the sharing of legal information online, and helping potential clients better and more completely understand what we do. Some think that technology has brought us too far. Clients are scrutinizing bills and, heaven forbid, asking us to explain to them, in plain English, the fundamentals of their cases or matters. Whereas before clients would just listen, get the bill, shrug their shoulders, pay the bill, and be thankful. Yes, Mr. Mason, those were the good ole days…Not. I like these days better. I like clients who care about their finances – being fiscally prudent is the world we live in and I like clients who live in reality. I relish clients wanting to understand their options and the legal parameters of their matters because, ultimately, while I may know what’s best for them from a legal perspective, they know what’s best for them from a human perspective. If the 2 perspectives form the frame in which I work, there is an opportunity to build a lasting bridge that benefits us both. Yes, I like these days better because today’s changes are bringing transparency, accountability, client collaboration, and more flexible fee arrangements. All of that combines in a formula providing more people access to the legal system and the protections and justice it brings. Of course, there will unfortunately still be “dream teams” but there will be more “Cinderellas,” too. Of course, there will be growing pains, more oopses, and battles between the old and new guards. However, if the changes we’re experiencing in the legal field mean more of our society will receive the legal services they need, I am very thankful for these changes, indeed. Now, let’s eat! Send me an e-mail or comment below and I\’ll tell YOU what the asterisk (*) after the \”Flux,\” means.
2 Lessons for Families on a Tight Budget
The Great Recession was enough to make most people try to pinch pennies where they can. However, the fact is that planning for the protection of your family costs money; it may not cost tens of thousands of dollars, but it still costs. Basic instruments that help protect the family are generally available for little or no charge at the courthouse – or on most state governments\’ websites. Still, to ensure that your instruments are correct, which means your family is appropriately protected, a legal consultation, even if brief, may be worth it. And for goodness sake don\’t try to prepare the instruments yourself. Document preparation services and low-cost collectives are in what is referred to as a \”race to the bottom.\” Allow me to illustrate this point: Once, I was in court for a hearing, so I decided to make it a 2-fer and get another client’s instruments filed with the court after my appearance. Waiting for the clerk, I overheard another clerk speaking with a woman who was trying to decide how to handle a guardianship matter in the least expensive, most efficient way she could. The woman told the clerk that she had the appropriate Power of Attorney (“POA”) and had possessed this document for a long time. The clerk then responded that the woman was “fine.” As a lawyer and, more importantly, as a human being, I find it necessary to step in when someone may be unwittingly jumping off a cliff. So I gently injected myself in the conversation just to inform these ladies that Illinois had changed both its powers of attorney a few months earlier. Eyes became saucers … oops. Lesson #1: Good advice isn’t typically free, BUT bad advice is typically very, very expensive. Even if an individual believes that they can’t afford a lawyer, instruments and the requisite advice for basic family protection is available for much less than the cost of really bad advice: Healthcare Power of Attorney, authorizes another individual to make decisions regarding your medical care and treatment while you are incapacitated. This POA is available in many places and is relatively self-explanatory. However, if you seek to have an attorney review your form, depending on your health, it should not take an unreasonable amount of time amounting to an unreasonable fee. Caution: If the form is driven by an online document preparation service, be sure an attorney licensed to practice in your state with a focus on estate planning performs the review. Laws change and automated document preparation services can’t modify their forms as quickly as an independent lawyer. HIPAA release forms, instruct medical institutions to release your medical records to the individual you designate on the form. The forms are universal because they’re governed by federal law and are available almost everywhere. They should supplement your Healthcare Power of Attorney. Property Power of Attorney, like a healthcare POA, authorizes an individual to step into your shoes and make decisions about your financial affairs. Also, like the healthcare POA, the document is readily available and should be reviewed by an appropriate attorney. Lesson #2: VIP documents, providing basic family protection, before death, cost a lot less than bad advice, even with proper attorney review. Today, most families are on tight budgets, but that shouldn\’t prevent you from being able to protect your family like families whose budgets are more flexible. However, to not protect properly…well…see Lesson #1.
11 Truths about Trusts, Part 1 of 2
Colleagues who bemoan the online legal services world are sometimes criticized by those in the online world for trying to keep the “Wizard” behind the curtain, so to speak. The criticism, which I agree with, is that clients are served better when they can understand what Mr. Wizard, Esq. is actually doing and saying. Yet, even my online colleagues can be a tad overly zealous in encouraging DIY applications. So to temper the curtain yanking but also shed sunlight on Mr. Wizard’s machinations, this 2-part series will provide a few truths about trusts, so let’s click our heels and get started: Attorneys charge more for trusts because we’ll never see clients again after creating the trusts for you, whereas wills keep you and your family coming back at least for probate, which generates big fees. Fact: Attorneys often charge more for trusts because it’s more work. We do see you again because life events such as divorces, re-marriages, and births often require a redesignation of beneficiaries at the least. Sometimes, we see you again because the IRS will inevitably change the tax code in a way that affects your trust. We will also see your beneficiaries if we are designated to administer the trust assets. So, the fees associated with creating a trust are not compensating for the loss of probate fees, they are compensation for the real work that is associated with creating, monitoring, and/or administering a trust. Provisions for tax benefits placed in wills can provide the same results as most trusts. Plus, tax savings in trusts are generally for the wealthy. Fact: True; provisions that save taxes can be placed in a will. However, a properly drafted, stand-alone will must be probated and probate fees will bite into the tax savings. Also, even if it is a small bite, heirs will still have to wait until the claims period ends – 6 months in Illinois – before receiving their distribution. With a trust, there is no probate. Still, while tax savings trusts are generally more applicable to the wealthy, who needs to ensure that they receive the benefits of tax savings and the distribution and sooner rather than later – wealthy beneficiaries or beneficiaries who are below the highest tax bracket? I cast my vote for those who need the money for college tuition, medical bills, or a mortgage payment. The trustee is not the owner of the trust assets because the relationship between trust, trustee, and beneficiary is a legal fiction. Fact: The trustee is the legal owner of the trust assets. With a “self-settled trust,\” the grantor (trust creator) can be the trustee and beneficiary, if the designation is proper under state law. Some grantors are comfortable with a different trustee and don’t require a self-settled trust; some are not. However, if the grantor and trustee are different persons, the grantor can hold the trustee legally accountable if the trustee does not comply with the trust terms. Some colleagues call the relationship as “legal fiction” and it could be interpreted that way. But, consider this: If your home is subject to a mortgage, can the bank come in and tell you what color to paint your walls or that you can’t tear down a wall or put in a closet? No. Similarly, if your house is subject to a trust you created and your son is trustee, he cannot tell you to move or paint the house blue, unless you give him that authority in the trust. Only attorneys can create trusts. Truth: A trust is a legally binding agreement. A legally binding agreement generally requires 2 parties who intend to enter into a mutually beneficial exchange, an offer of benefit, and acceptance of the offer. The parties are not required to be attorneys. Caveat: Agreements can be challenged by parties to the agreement or by intended third party beneficiaries, and that is why attorneys should usually be consulted when creating a trust. Those who say that a trust cannot be challenged by third parties are not considering what is legally referred to as “remaindermen,” and what folks like you and I call “grandkids.” A trust is needed only when a great deal of money is at stake. Truth: A trust is needed especially if a limited amount of income at stake, in case you become incapacitated, even temporarily. If you’re a trustee, with a back-up (\”successor\”) trustee, and you become temporarily incapacitated, the successor trustee will manage the trust until you recover. If you don’t have a trust, your family will have to petition probate court to have you declared incapacitated and appoint someone to look after your financial affairs and possibly a guardian until you recover. This process costs money that will be probably taken out of your limited income.
Embracing Online Legal Services…Toothpaste Shouldn\’t Go Back into the Tube
Welcome to The Lotus Rules, formerly known as the Shark Free Zone, the blog for my practice\’s web site. As an experienced blogger, admittedly, this first post is too long, but it\’s the first so I took license. Still, for the sake of you readers and my practice, subsequent postings will be shorter. I was going to write my inaugural piece on why most individuals should have something in place protecting their property and possessions in case they die. However, most, if not all, of the teleconferences, seminars, and webinars that I’ve recently attended were tinged with angst caused by online legal services. Inevitably, a participant would give a haughty, “We’re not afraid of you …humph!” when nothing could be further from the truth. So, the “why you should have something,” piece will make its debut next, as I now share a few observations on the brouhaha regarding online legal services. The fundamental perception underlying the online legal services debate is based on our profession’s steadfast and imprudent use of an outdated framework. The 3 sides of this frame are change aversion, fee generation, and professional egoism. Encompassed within are a myriad of factors, including risk aversion, money affection, perfectionism, and control- and structure-orientation. However, it is the bottom of this non-gendered triumvirate, our professional egoism, causing the most discord. Arguably, certain arguments opposing online services are justified, as is a certain amount of lawyer egoism. Many colleagues and I spent years of enormous effort, anxiety, sleepless nights, money we did not have, and BIG brain power to get to achieve our goal – acceptance in one of the most respected professions in the world. So, those of us who “survived” are now in an “elite” group and that has to mean something. Right? Yes, it does … within reason. The reasonable justifications for opposing online services and justifications for our egoism include: A very high standard of performance in communication and analysis, A deference and respect for those seeking our services because most folks don’t turn to an attorney unless there’s trouble afoot, A deference for and an ability to establish rules that can stand the test of time, lending stability and civility to our society, aka “precedent,” and A genuine desire to help others – not necessarily the altruistic human rights,\”let\’s save the internally displaced\” kind of help, but the “if you sign this contract as it’s written, you’ll lose your shirt” kind. However, the unreasonable justifications are what foster the profession’s debate and undergird the angst: Interpreting elite as exclusionary whereby understanding the law is our territory and online legal services are trespassing, Defining clients as those who can pay premium fees for our efforts, and Simply meaning that “we’re ‘in’ and you’re ‘out’; hence, we make the rules, hide their meanings, and change them whenever we want; and you follow the rules while we enjoy lavish lifestyles.” The reasonable justifications for opposing online legal services can be reconciled with supporting the same. However, those of us holding on to the unreasonable justifications are doing so perilously. Understanding the law is not the exclusive purview of lawyers. It is our duty to protect our clients’ rights. For us to discharge that duty, clients should at least know what their rights are, when their rights are in jeopardy, or when they\’ve been violated. Yet, lawyers don’t sit around coffee shops to see who’s writing the next “One L” and we certainly don\’t troll sweatshops calculating how long the seamstress has worked and for what amount of compensation. Ergo, clients must have some understanding of the law as it applies to them in order to seek protection or demand redress. Frankly, non-exclusivity in this context has generally been the case, so exclusivity is a meritless argument and efforts to continue hiding behind the curtain in Oz are foolhardy. Let me explain. Several decades ago, on Main Street, USA, Almost Famous Author finished \”Two L\” and told Neighbor Nikki about his manuscript, who then advised “call the Library of Congress and get it copyrighted; they’ve got the forms.” Almost Famous Author did as advised but also went to see Attorney Shingle. Attorney Shingle gave Almost Famous Author the forms at no charge, saying, “Call me if ya got any questions, and don’t worry about the fee ‘cause it won’t take long.” In fact, the visit with Shingle was free, too. Well, times changed. Main Street gentrified into Wall Street and Attorney Shingle joined BL & Associates, LLC where forms along with most visits were no longer free. Moreover, Attorney Shingle’s son also went to law school and joined BL, and so did Attorney Shingle’s grandson, and times were great for the profession. Now, times have changed again. Technology allows companies and firms to provide free or inexpensive legal forms and free information, with expeditious delivery, so that even wannabe famous writers who could afford BL are obtaining legal services online. Irrefutable is that the purveyors of the new free forms and information earn a comfortable living, but they are also doing something to offset a most egregious result of the second factor – limiting who obtains help by requiring clients to pay a premium’s premium fee. Firms embracing technology are providing access to legal services to those who needed them but often could not afford them. Technology helped unmask the rules and unlock their “hidden” meanings with “plain English.” As a result, the technology toothpaste is out of the tube, so to speak. Yet, all is not lost for lawyers and clients who prefer the traditional ways. The legal profession has a great opportunity in its impending transformation. Of course, some practice areas are too complex to lend themselves to online services, e.g., international intellectual property matters and corporate litigation. However, if lawyers in even complex areas can unbundle repetitive, redundant processes, the outcome will be greater efficiency, happier clients, more clients, and higher income without increasing fees. In contrast, some areas must change dramatically or technology will devour