ABOUT LIVING TRUSTS

 

law offices of merwyn j. miller
191 calle Magdalena, suite 270 • encinitas, San Diego County, ca  92024 • 760-436-8832

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Working with an Attorney! Do You Know How?

Introduction

Problem

Difference Between a Typist, a Paralegal, and an Attorney

Liability

Conclusion


Introduction: Margaret made an appointment with an attorney that she had never seen before. She was new to the area and needed to have her estate plan updated. When she sat down with the attorney, she told him she wanted a Trust that had an A/B provision, a simultaneous death clause, a marital deduction formula approach, etc., etc. The attorney started asking her a series of questions about the facts of her situation, such as, what she owned, the value of her assets, how many children she had, whether she was married. Margaret couldn’t understand why the attorney was asking questions, couldn’t he just draw up the document the way she was telling him. Soon after she entered the office, she exited, abruptly, without having made any progress but with a total waste of her time!

If you have never dealt with an attorney before, this relationship can be very scary, calming, fruitless, worthwhile, expensive, economical, or a combination of many of those things. Certainly the purpose for which you are seeing an attorney can determine much of how you will feel about the relationship. I imagine that hiring an attorney for your own criminal defense is gong to be much different than if you were hiring the person for your estate planning. Since the latter is the area of law in which I practice, I will limit my comments to that arena.

Problem: Margaret’s problem was that she was trying to give the attorney a “prescription” rather than seeking his advice. Although, I am told, there are some attorneys that actually do work that way, in my opinion this is not the way an attorney should work. There is a difference between a typist, a paralegal, and an attorney.

Difference Between a Typist, a Paralegal, and an Attorney: People get confused on this a lot. I've had many a consumer sit down in my office, in possession of their Living Trust (done by another law office or maybe even a paralegal) that might have been several years old and tell me that all they wanted was a simple change so that grandson Hank would get $40,000 instead of $20,000. They didn't want me to review it, they didn't want me to tell them what else might need to be changed, they didn't want to discuss whether Hank's mother (their daughter) might get upset about this and how they could deal with it, and they didn't want to discuss of what their estate consisted and whether they would actually have enough cash upon their demise for this gift to actually be feasible. And they certainly didn't want to pay me more that $75 to get the job done. What they really wanted, but didn't know it, was a typist, not an attorney.

So what's the difference? Without getting too technical, you want a typist if you know exactly what you want to do, exactly what wording you want to change and what the new wording should be, and you know exactly what sentence or paragraph you want to change. Typists typically charge by the page; so if your change is short, figure $40. Paralegals, although they are not supposed to work independently of an attorney, often know where the change should take place in your document and might even know how to word it effectively. Figure you might pay $150 to a Paralegal for this job. But if you want to know not only where the change needs to be made and how to word it but, also, how that change might affect other provisions in your documents, whether it is a good idea or not, alternatives to the general changes you had in mind, the tax effects of this change, how to protect those changes from challenge, other changes that might be a good idea to make either because of this change or changes in the law or your other circumstances since your Living Trust was originally created, then you want a lawyer. But don't expect to pay Paralegal prices for a lawyer. A lawyer would charge based on the complexity of the change and the complexity of your entire estate; but if you haven't seen that lawyer for several years or the original Living Trust was done by someone else, it's doubtful that it could be competently done for less than about $950.

Liability: Oh, and by the way, if you do choose the Paralegal or typist and things don't work out the way they were supposed to because of what the person did or advised, don't expect your children to be able to hold that person responsible for the losses they've suffered. A court will probably tell them that you should have hired an attorney to do the job because in most states it's illegal for anyone other than an attorney to do this type of work (although in California this law is rarely enforced).

Conclusion: Bottom line: when you see an attorney do so for his advice (and allow him to gather enough facts so that he can give you advice), not the fact that he can type.

   
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