The terms “estate lawyer” and “estate planner” can have multiple meanings. An “estate lawyer” could refer to an attorney who assists with the handling of someone’s estate after their death (AKA, a “probate lawyer”). It could also refer to an “estate planning lawyer,” a legal professional who helps people prepare for death, incapacitation, long-term care needs, and other scenarios.
The term “estate planner” could also refer to an “estate planning attorney.” It could also be a financial planner who provides assistance with estate-related matters. In any case, the same estate could benefit from a financial planner, an estate planning lawyer, and a probate lawyer at different times.
Hiring a lawyer can be highly beneficial during key parts of estate planning and probate administration. In fact, New Mexico’s courts and other professional organizations often recommend appointing an attorney in complex cases, such as for a contested probate or when creating a business succession plan.
New Mexico Financial Law can provide you with guidance for estate planning, probate, and other related matters. Call our offices at (505) 503-1637 or contact us online to schedule a consultation and no-obligation case review with our experienced attorneys today.
An estate planning lawyer can help you draft key legal documents that form an estate plan. These documents can include your:
There may be other documents that require an experienced estate planning lawyer in New Mexico to properly create. For example, if someone wishes to change the title on their home to a joint tenancy with rights of survivorship (JTWROS) deed, so that a relative can inherit it probate-free, an estate planning attorney can assist with that.
One of the most important advantages an estate planning lawyer can provide is their ability to use clear and legally enforceable language when drafting your estate planning documents.
Consider, for example, an advance healthcare directive or a will that had vague or confusing passages. These flaws are typically only discovered after the document’s original creator has lost the capacity to communicate their intent — or after they have passed on.
Working with a lawyer who is experienced with estate planning reduces the risk of confusion or the need for courts to interpret a document. Your attorney can also help you anticipate common challenges, disputes, or other legal issues that could arise. They can then recommend strategies to avoid adversarial proceedings — while also making the intentions behind your estate clearer to your loved ones.
There are many situations where the assistance and advice of an estate planning lawyer can be useful. Some of the most common scenarios are listed below.
Not having a will risks your estate falling into intestacy. If you die without a will, a court must appoint a personal representative (AKA an executor) for you, rather than you being able to nominate someone yourself.
Strict rules then guide the distribution of property. Your estate in its entirety must go to your spouse and/or children. If you don’t have a surviving spouse, children, or other descendants, then your next-closest class of living relatives inherit everything. These may be your parents, siblings, grandparents, or even nieces and nephews.
These situations force your personal representative to follow specific guidelines, disregarding any wishes you may have had. To avoid this scenario, you should create a will as soon as possible and update it as needed.
Guardianship gives someone legal authority over you and a responsibility to care for your well-being. Conservatorship gives someone legal permission to handle your financial — and certain medical — affairs.
Obtaining either in New Mexico involves a lengthy and often expensive process. Once they are awarded, the appointed guardian and/or conservator wields nearly unlimited authority.
The only way to prevent this situation is to create durable powers of attorney:
Unlike guardianship and conservatorship, you can nominate your choice of person for each one (or both, if you would like one person to handle both duties). You can also limit their powers and provide binding instructions to avoid scenarios you would not want.
All of these wishes must be put in writing and signed by you while you still have capacity. An estate planning lawyer in New Mexico can assist with this process.
Trusts are legal arrangements that place property in the care of a trustee on behalf of your selected beneficiaries. Different trusts have different functions, but all can offer peace of mind while easing the responsibilities of managing your assets.
Like a will or power of attorney, the language you use to form the trust is critical for its ability to offer the intended functions and benefits. In other words, you want to get it right the first time.
Some trust arrangements can be complicated, too, such as a special needs trust. Proper formation requires legal knowledge and familiarity with specific laws.
Nearly all trusts are designed to provide long-term performance and accomplish specific goals.
You may also have other plans you want to put in place to coincide with your trust arrangements.
For example, you may wish to give your trustee springing power of attorney to manage your personal financial affairs (and not just your trust affairs) in the event that you are incapacitated. An estate planning lawyer can help you clearly distinguish between the two duties, so your trustee can avoid conflicts of interest or other thorny situations. They can also help you precisely set up your legal mechanisms so that everything fits perfectly within your overall estate plan.
Estate plans rarely outlive their creator in their wholly original form. Instead, they are often revised and updated throughout the creator’s life in response to significant developments.
It’s important to update your estate plan when you experience any of the following:
Long-term care is expensive. When you have a difficult-to-treat condition, especially at an advanced age, you will need to form a financial strategy. The goals of this strategy, typically, are to preserve as much of your estate as possible without compromising on the quality or availability of care you receive.
An estate planning lawyer in New Mexico can help you go through your options, which may include an extra retirement cushion, long-term care insurance, or Medicaid planning.
An “estate lawyer” frequently refers to a lawyer who helps manage estates after the death of the original estate owner. Because probate is one of the biggest estate obligations to take care of, these professionals are often referred to as a “probate lawyer.”
When someone dies, all of the property they owned in life forms their “estate.” Some of this property will enter probate before it can be transferred, while some may transfer outside of probate.
In either case, the individuals handling the estate of the deceased person (AKA the decedent) have many duties to fulfill and tasks to carry out.
During probate, for example, the estate’s executor must:
The process can get more complicated in the following situations:
In cases like these, the New Mexico Courts recommend that the personal representative seek the assistance of an experienced probate lawyer.
A lawyer can also assist other parties with handling property transfers or dealing with administrative activities that occur outside of probate. Examples of these situations include trust distributions, property transfers, business succession plans, account transfers, life insurance payouts, and legal settlement negotiations.
Attorneys who are experienced with handling probate can typically handle these other related matters, which is why they may be referred to as an “estate lawyer.” The ultimate goal of these legal professionals is to help their clients resolve any disputes and settle the final affairs of the decedent, helping everyone heal and move on from their loss.
Licensed attorneys are needed to resolve legal disputes, ensure compliance, and properly execute estate documents. However, they may not have the expertise needed to make specific recommendations for tax planning or long-term investment management. Accordingly, someone who is forming their estate plan may want to talk to a financial planner at key stages in the process.
The duties of an estate planning lawyer vs. a financial planner can even overlap.
For example, suppose someone wants to form a grantor-retained annuity trust (GRAT) to reap maximum tax benefits. In that case, they would need precise calculations and recommendations on the right assets to use to fund the trust. Otherwise, the trust could fail to provide the expected performance. Accordingly, they may wish to talk to both an attorney and a finance professional.
Your financial advisor is also a key person to refer to when determining the full extent of your asset portfolio, including each asset’s respective value, and what the long-term outlook would be. All of this information is important to have when forming a trust or preparing for the final disposition of your estate. In this way, legal vs. financial estate planning can often go hand-in-hand.
An accountant can also prove invaluable during probate, especially when it’s not clear if an estate can cover all of its debts and obligations. While a financial expert cannot provide legal advice in many contexts, a lawyer may similarly suggest that a financial strategist is needed. Your accountant can go over the financial options available and recommend the best way to proceed in a murky situation.
As you can see, there are situations where the same attorney may be called an “estate lawyer” in one context and an “estate planner” in another.
There are also separate professional spheres for the law versus financial planning and advice. All of the above types of professional services can have their place during estate planning, probate, and other related matters.
In any case, court personnel are unable to provide either legal or financial advice for estate-related matters. Instead, they may recommend that you seek the help of an attorney, an accountant, or both.
New Mexico Financial Law has worked with clients throughout the state for over a decade. We are highly familiar with a broad range of scenarios, including potential challenges or pitfalls you can avoid with the right strategy.
In many cases, our discussions can benefit from the input and information lent by a financial planner. In other cases, we may explicitly recommend that you collaborate with an accountant or financial planner to uncover the best path for moving forward.
The key detail to remember is that we have client-centered lawyers who are available to help you with any estate-related services you need. Whether you are forming a plan for yourself or executing a plan for a loved one who has passed, our experienced attorneys work closely alongside you to accomplish your objectives.
Call our law firm at (505) 503-1637 to schedule a consultation and receive personalized recommendations during a no-obligation case review.
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