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ARTICLE:
Role of Lawyer as Counselor Is Important
by JAMES P. COX, III
While having an lawyer to make sure
that your will and other estate planning documents are legally
binding and that your affairs are in order is important when
planning one’s estate, James P. Cox, III of Michie Hamlett
Lowry Rasmussen & Tweel, PLLC, believes that it is the
role of the attorney as a counselor that many people overlook
in estate planning.
“The role of an attorney as counsel is important in
developing a proper estate plan but it is even more in the
forefront during the initial period following a death.”
Cox explains, “There are no doubt important financial
decisions which must be made after one dies but there should
be no need for the family to rush to deal with them immediately
after death. First there are the personal matters to address----family
matters to care for, funeral arrangements to be made and time
for the grieving and remembrance. It’s the role of a
good attorney to help the family in these first days to focus
and remember what is important.”
The best way to head off problems in the estate administration
process is with good estate planning. “A good lawyer
should counsel their client when they are drawing up a wills,
trusts and other documents, helping to be sure decisions are
thought through properly, making sure the client is aware
that their well-intentioned desires might lead to unintended
consequences,” states Cox.
He notes that sometimes a person will assume that certain
assets or property will automatically go to the person they
intend to have it, but how person’s assets are titled
may determine how they are distributed when that person dies.
“A lawyer, acting as counselor, can help the client
think through all of these issues, helping them decide what
they should do now to have their intentions fulfilled later,”
Cox says.
People decide to write, or rewrite, their wills at different
times in their lives, Cox reveals. “They will come in
when they have their first child, when they reach an age when
they start to think about getting old, if they have a brush
with death, even when they plan a trip and know they will
be flying,” he says. “A person will decide to
change their wills for many reasons and it is always their
right to do so.”
Communicating to one’s family about many of the aspects
of one’s estate plan is important Cox states and this
is another aspect of when an attorney should serve as a counselor
to his client. Many times one of several children will be
chosen to serve as executor of the will or as a trustee for
another’s inheritance. Cox believes that an attorney
as counselor can help a client understand how problems within
the family can be lessened or avoided by sensible planning
but also with communication with family members when it is
appropriate.
“In all families, but especially in complex families
with a step-parent as a spouse or with children and stepchildren
involved there will be different sensitivities that should
be addressed,” Cox explains. “The client should
alert their lawyer when these situations exist. When the lawyer
knows the family dynamics, he or she will be able to highlight
trouble spots and how some of the client’s decisions
may affect the family members, making the client aware of
the possible consequences of those decisions not only on the
finances of the beneficiaries but also the future relationship
among family members.”
The role of a lawyer as counselor, and not just advocate,
is one that Cox is proud of and thinks that more clients should
seek such advice from their lawyers. “Acting as a counselor,
someone from whom a client seeks guidance when making critical
decisions, as in estate planning, is what being a good lawyer
is about,” Cox said while pointing to his Virginia law
license on the wall. “It does not just say attorney;
it says ‘Counselor at Law’ as well. We’re
there to assist the client with their decision making, to
make sure that their testamentary desires are achieved but
also to help them understand the possible consequences of
their decisions, as well as to be there to help their families
when the time for an estate administration comes,” Cox
says.
James Cox, III, is a member of the American Bar Association
and the Virginia State Bar and is presently the Vice Chair
and member of the Council and Legislative Committee of the
Wills, Trusts and Estates Section of the Virginia Bar Association,
among other memberships.
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