Small Law Firms

From Client To Decedent: The Final Homework Assignment

Executing estate planning documents is akin to submitting a long overdue homework assignment.

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It is often said that attorneys are problem solvers. A client turns to her attorney for advice and advocacy with regard to a legal or practical issue. The process to reach a resolution is often arduous, so when a problem is solved — either through drafting, agreement, or even litigation — there is a sense not only of closure, but of gratification.

Certainly this is the case for the attorney when a client executes her last will and testament, power of attorney, or health care proxy. Specifically, the signing of these estate planning documents provides a sense of relief or as many clients state, peace of mind. Clients seek the solace that in the event of crisis, instructions as to health care, financial planning, the disposition of assets, and most importantly, the care of children, are arranged.  It is frustrating for practitioners and clients alike when estate planning documents remain in draft, unsigned. In such a stage, regardless of effort or contemplation, the documents are worthless.

The sense of relief upon signing a last will in particular is palpable amongst young families. These are the parents with children who are trying to adult by making certain in the event of tragedy, albeit remote, those most precious to them are protected. For those closer to the end of life, the relief is also felt as what may be a final direction is subscribed.  Regardless of the generation, it would seem that executing estate planning documents is akin to submitting a long overdue homework assignment. The good news is everyone gets an A no matter how long it takes to get it done.

While there is an obvious sense of relief at the moment of signing, there is no way for the attorney draftsperson to realize the full efficacy of the signing of the last will and testament until one dies. You plan, draft, execute, and retain — yet it is unknown whether the plan will properly launch until the client dies. Herein lies the predicament for the practitioner. You write and execute the documents with the hope that they will not need to be used for many years, if not generations. Yet isn’t the ultimate efficacy for the attorney and the client when the surrogate’s court admits the last will and testament to probate and validates the genuineness of the document so that the instructions may be carried out?

It is therefore a sobering experience when a client, whose last will you drafted, dies. It is at this time that the last will is offered to the surrogate’s court, with the hope that it will prevail against any inquiry or objection. It is the moment you have waited for, but have also dreaded.

Two of my clients died this month. I had drafted each of their wills and medical directives, the latter which were used during their final illnesses. I attended their funerals. I embraced their families and friends. I also reread their last wills and testaments, their final letters that I helped them create. I have since entrusted the surrogate’s courts with the last wills, to review and ultimately approve. I have thought about each of them, now referred to as “decedent” and not “client.” I transition from their attorney to the keeper of their essence and memory. Family and friends wonder, what did they think? What did they want? How did they feel? I know.

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The attorney (or student) in me seeks the court approval as to the last will and testament’s validity and genuineness, literally a stamp that all is right and that I have aced the project. The human in me knows, however, that the task has already been completed and any issues were resolved years ago when the services and advice were provided. The clients passed away knowing their matters had been tended to and that they were safe with me and their trusted friends and families.

At times like these, I recognize that the problem that required solving was the lack of planning. The solution was the actual execution of documents addressing the client’s concerns and desires. The clients’ deaths are simply the natural progression of matters already in motion, figuratively and literally. And it is at these times that I realize that I am not problem solving. I am problem avoiding.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at [email protected]. 

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