Over the years, I’ve criticized attorneys who recommend Wills to their clients instead of a revocable living trust. The main reason given is “probate doesn’t cost that much” or “probate is no big deal.” These statements are usually accompanied by declarations that spending the money on a revocable living trust doesn’t make sense for their particular situation because they have less than “$2 million” or some other figure. Most of the time, they are just plain wrong. In some cases, they are intentionally misleading their clients. Probate generally costs between four and ten percent of an estate, has delays of six months to a year and a half, leaves an estate plan more vulnerable to contests, and destroys family privacy. For more information, please read my book The Anti-Probate Revolution.
So why would attorneys recommend an estate planning vehicle that causes those problems? Because probate attorneys make a lot of money administering the process of probate. It’s like the only car mechanic in town also selling used cars that they know are lemons. The sale of the car is nothing compared to the work they’d get fixing up a jalopy. Now let me be clear about this—I have no problem with probate attorneys who charge fairly for the work they do. What I have a problem with is probate attorneys who recommend at the planning stage that their clients get Will because probate is not a big deal.
Now it is time to hold those attorneys who recommend Wills instead of a revocable living trust accountable for their recommendation. Attached here for download is a retainer agreement for an attorney to create Wills for a couple or individual with a probate guarantee. If you received a price quote from an attorney to create a revocable living trust plan and an attorney offers to draft Wills because “probate is not expensive,” then they should have no problem signing the retainer agreement attached which guarantees the total cost of probate will not exceed the cost of a revocable living trust estate plan.
For those attorneys who deceptively recommend Wills to get the expensive probate work later, I doubt they will sign the agreement because it is their intention to get more money later. For those attorneys who simply do not know better, the agreement will hopefully get them thinking about what is really best in the long-term.
Married Couple Retainer Agreement