Christopher Guest--a member of the Estates, Trusts and Probate Section of the D.C. Bar--assisted in writing the Wills Chapter of the D.C. Practice Manual. In his interview with D.C. Bar Voices, Mr. Guest discusses the myths, recent developments, and future implications in estate planning.
DCBV: What do you think are some myths in Estates, Trusts and Probate law?
CG: One of the biggest myths that I encounter is the belief that anyone, even a cheap software program, can draft a will or create an estate plan that will function as the drafter intended. At a basic level of planning for those people that only need a very simple plan, there is likely some merit to that argument. But, once a person’s estate grows beyond the minimal “I give my estate to my spouse,” an estate planning attorney is usually necessary. Even if a person drafts a will that works, many people will improperly execute his or her documents thereby potentially invalidating the document.
This belief transfers over to probate administration. Even a brief consultation with an attorney that might not result in a full engagement before petitioning for probate administration can be extremely helpful. That consultation can save the personal representative time, money, frustration and potentially prevent the removal of the personal representative by the Court for failing to meet a filing deadline. Removal of pro se personal representatives for missing basic probate deadlines happens all the time.
That leads into the last myth I see. Many non-estate planning attorneys believe that taking a trust and estate course in law school translates into the idea that the attorney can adequately draft a will. I cannot tell you the number of estate plans that I see that don’t work for the client because it was drafted by an attorney that practices in another area of law. Usually, the attorney is doing a friend a favor by drafting a will and just uses simple forms. Many of these estate plans miss potential pitfalls, have contradictory clauses, create uncertainty by using industry wide terms incorrectly or do not fully address the client’s estate situation. It simply comes down to the old adage of “you get what you pay for.”
DCBV: Are there any recent developments that other estate planning practitioners should be aware of?
CG: The District of Columbia adopted the Uniform Trust Code (“UTC”) back in 2004. The D.C. Practice Manual has provided rudimentary information regarding the UTC. The 2013-14 D.C. Practice Manual Edition hopefully rectifies that issue. The UTC section has been greatly expanded and developed to denote the growing utilization of trusts. The changes also reflect the development of case law since the passage of the UTC demonstrating teaching points and areas of concern for practitioners.
But, we also took a look at the entire chapter and revamped sections to reflect other changes in the law, issuance of new cases that impact our section, and make it easier to understand.
DCBV: What are your future implications in estates, trusts, and probate law that you think will need to be addressed?
Unfortunately, one area that was not addressed in this edition because the law was enacted after the D.C. Practice Manual’s publication due date was the D.C. City Council’s passage of the “Uniform Real Property Transfer on Death Act of 2012” (“the Act.”) The Act allows a D.C. real property owner, when properly executed and recorded with the Recorder of Deeds, the ability to transfer real property title to named beneficiaries outside of probate upon the real property owner's death. In short, the Act would allow a person to transfer ownership in real property like other non-probate assets like life insurance.
From a high level view, this seems like a modest change, however, our section recently had several speakers come in and talk about the pitfalls and concerns with the Act. It is likely issues will arise that attorneys will need to know. Next year’s D.C. Practice Manual will address those issues allowing practitioner’s to become more familiar with the Act.
About Christopher M. Guest, Esq: Christopher Guest offers comprehensive estate planning, trust and probate services and general business counseling in the Washington, D.C. area. Mr. Guest's professional background include working at two large international law firms, a national general contracting company and a small human resources start-up. Mr. Guest graduated from the Johns Hopkins University with a B.S. in Civil Engineering and was a letter winner on the football team. Mr. Guest earned his J.D. from George Washington University Law School. He is admitted to practice in D.C., Virginia, Maryland and New York (inactive). He has captained an American Diabetes Association team the last 10 years raising over $250,000. He resides with his wife, two children and dog in Arlington, Virginia.
Mr. Guest can be found onTwitter (@vaestateplanner), his Blog (http://vaestateplanner.wordpress.com/) or website (www.guestlawllc.com ). You can also view his newsletters here.
