Businessman and lawyer discuss the contract document. Treaty of the law. Sign a contract business.While the attorney is an expert in the estate planning process, the client is the expert about their own life, grief and choices. The attorney, as counselor, helps clients find solutions and make choices as they compassionately facilitate the estate planning process.

Holistic planning involves more than probate avoidance and tax minimization. It is person-centered, value-driven and process-oriented. The law historically prioritizes a different approach, viewing planning as document-centered, worth-driven and procedurally oriented. This approach is visible in the emphasis Congress, legislatures and estate planning attorneys place on the crafting of laws and drafting of documents.

The binary nature of estate planning documents simply does not help clients. We must allow space for each client to express emotions and intentions if we are to craft a successful and complete plan.

Statistical studies demonstrate the dismal success rate of estate planning and end-of-life planning. In Roy O. Williams and Amy A. Castoro’s Bridging Generations, they analyzed the success rate of more than 3,250 estate plans over a 52-year period and found a success rate of about 30%. The authors define success as “future generations retaining the family’s financial assets while remaining a unified family.”

When dissecting the failure rate further, the study finds that 3% of the failures occurred due to bad drafting or tax planning. The remaining 97% of failures occurred because intentions were not honored, monetary legacies were misspent, lost or stolen and family relationships fractured.

Professor Thomas Shaffer, in his article titled “Estate Planning Games” — a play on the book written by E. Berne, Games People Play — encourages attorneys to meet clients with curiosity.

Attorneys are advised to consider the client’s needs rather than starting with the needs of the attorney. In other words, Shaffer affirms that we must start with the question: Why? Why are you here? Why is what you said important to you? Then, the process can organically grow from there.

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