Unit 2 Assignment: Drafting a Will Lauren M. Lay Post University _LAW105_32_2023_24_TERM2_Estate_Administration_and_Probate_Practice Professor Joseph Milardo September 10, 2023 Unit 2 Assignment: Drafting a Will
1) The first question asked is, "Is it ethical for the lawyer to be both draft the client's will and serve as the Executor?" It is not required or recommended for the clients to have their lawyer draft their will and serve as the client's Executor. The potential conflicts of interest that can arise when an attorney drafts a will for a client which designates the drafting attorney (or another member of the same firm) as an Executor, an ethics opinion clarifies the issues which need to be considered in this designation. The same concepts apply to the designation of Trustee's, Guardians, Agents, and other fiduciaries. The lawyer must first have the requisite competence. Including knowledge about his field of law. If a client is considering the designation of a lawyer, as an executor also, they should confirm his or her experience in this practice area. The designation of the client's lawyer as the Executor should only be made after the client has considered all other available options. The client should discuss whether their goals would be better served with the lawyer as the Executor, in lieu of their family members, friends, or professional fiduciaries (bank or trust company). The Client should consider the relative experience each person may have in performing the assigned duties, consider if the actions of the lawyer will be covered by the liability insurance, or if the action of a fiduciary will be bonded. The cost of each choice should be considered. The client should also ask the lawyer if there will be any charges for services as the Executor. It is recommended that the lawyer sends the client a written request for confirmation of the client's consent to the designation of the lawyer as the Executor. To avoid impropriety, the lawyer may elect not to be a witness to the Will. In some cases, another lawyer may be asked to handle the execution of the Will, or a notary public could be asked to acknowledge the client's signature. Stricter disclosure rules will apply if a lawyer solicits a designation as the Executor of a client's Estate. Lawyers cannot ethically include themselves as an Executor or successor Executor without the client's consent. A lawyer cannot require you to designate his or her as the Executor. Any client can always execute a new
Will at any time, whether they have previously designated their lawyer as the Executor. All aspects of the client's estate plan, changes should be considered periodically as the client's circumstances change. 1) The second question asked was, "How would you put a new client at ease so that you may elicit the necessary information from him or her to draft the Will?" I feel one of the number one way to make a client feel at ease would be to listen more carefully to everything that the client says. To improve listening skills, avoid interrupting or rehearsing answers while their client is talking, instead make sure to pay attention to non-verbal cues like emotions for better communication. "Active Listening" is especially important. The four key elements an active listener does are: 1. Ask questions, when you ask questions, your client will know that you were listening to them, and understood them, while asking for more information. 2. Be supportive, each time you interact with a client always make it a positive experience. 3. Be cooperative, give clients your feedback but be sensitive. Your client should feel supported, not criticized. Accept feedback from your clients as well. 4. Make suggestions, when it comes to a client, delivery is king. Another way to keep your client at ease is by keeping your client's communications secure. Keeping client information is critical. Encrypt all communications and communication channels. Keep personal and professional accounts separate on social media. Be mindful when working out of the office, in public areas where others cant sell your computer. Use a secure client portal for extra security when sharing documents and other sensitive materials. 3) The third question asked was "Describe and compare the non-testamentary documents that are available to the client." A non-testamentary act is an unattested act which determines or affects either the amount of a legacy or devise or the identity of the legatee or devisee, but whose primary purpose is other than affecting the Will that is, non-testamentary.
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