Discretionary Living Trusts A legacy for generations

Written by Trust Specialist, Mervin Messias, it is the culmination of knowledge and expertise that has been acquired over many years’ study and practice of Trust law.

The author recommends the use of Trusts as part of estate planning because they provide solutions to many potentially complicated problems related to asset protection, succession planning, and disability protection. Many little-known benefits of Trusts are revealed to help protect your hard-earned wealth for generations to come. A Trust circumvents the whole process of winding up an estate, together with its potential delays, hassles and frustration.

In fact, a Trust deserves pride of place in any estate plan. It means business as usual, even after death, with no executor, executor’s fees or estate duty.

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    Fees of an Estate Plannin...


    Fees of an Estate Planning Attorney

    Fees of an Estate Planning Attorney

    Use caution in comparing the relative value between attorneys solely on the basis of the amount of their fees or their fee structures. You would be far better off to compare the value of their respective services – less the amount of their fees – one to the other on an apples-to-apples basis.

    Is it necessary for me to have a written a fee agreement with the attorney doing my estate planning?

    So as to avoid the potential for misunderstanding, it is generally a good idea for you and the attorney to have a written fee agreement establishing the parameters of the attorney’s services and the amount and nature of the billing. Fee agreements are beneficial to both you and the attorney. They should establish a clear description of the exact services the attorney will provide and the terms of the payment.

    Should I have to pay an attorney for an initial consultation?

    Some attorneys charge for initial consultations, and some attorneys do not charge for them. It is entirely dependent upon each attorney’s billing policies.

    What else do I need to know about fee arrangements?

    Some attorneys require a refundable or nonrefundable retainer. If the attorney uses the client’s retainer to offset subsequent hourly or flat fees for work and returns the unused portion to the client, the retainer is refundable. If the attorney does not return the unused portion of the retainer, it is considered nonrefundable.

    What other items of expense might I have in working with an estate planning attorney?

    Costs not usually included in the fee you pay to the attorney for his or her professional services generally include expense such as:

    • Fees for conveyancing
    • Appraisals of real estate, personal property, or other assets for purposes of making gifts or for establishing values in partnerships, and limited liability companies
    • Out-of-pocket costs for photocopying, facsimile transmissions, long-distance telephone calls, online research, and other such direct expenses

    Are there any annual or additional costs of keeping the trust plan updated?

    A living trust-centered plan requires minutes or memoranda of meetings held by Trustees, as might be the custom with partnerships and limited liability companies.

    The routine conduct of transactions with your trust will not require you to change or amend the trust documents. Putting assets in the trust and taking assets from the trust generally do not require you to change or amend the trust documents. One of the characteristics of a well-prepared estate plan is that amendments can be made without major redrafting of the entire trust document and at relatively reasonable cost.

    However, significant changes in your family makeup, significant events in the lives of the individual members of your family, changes in the way you want assets distributed at death, or substantial changes in your overall tax plan are events that will likely generate higher fees to amend or restate your trust.

    It is considered good practice for you to consult and review your overall estate plan on some predetermined regular interval with your estate planning advisors and attorney.

    What should I expect to pay to have a comprehensive estate plan designed and drafted by a qualified estate planning attorney?

    The legal fees for estate planning vary a great deal nationwide, much the same way that the prices of real estate vary. They will also vary depending upon the expertise and experience of the practitioner that you choose to retain and the complexity of your planning needs and desires.

    Because of these dramatic variances, any general numbers would not have any significance to your particular situation.

    Are there general observations about estate planning fees?

    When it comes to legal fees, you almost always get what you pay for. You would be well advised, especially over the long run, to spend more money with a highly qualified attorney than to spend less money for someone less capable or experienced.

    The fee for a comprehensive plan will be based upon its complexity and will vary with every case and every family. Typically, the larger the estate size, the more planning is needed to effectively protect it from confiscatory taxes. More planning requires more attorney time, more expertise, and a greater variety of planning tools.

    Very simple estate plans might generate fees in the hundreds or low thousands of rands; complicated multimillion-rand plans will generate fees in the tens of thousands; and very large estates could generate fees in the hundreds of thousands of rands.

    Regardless of the size and complexity of the estate, the amount spent for legal fees should pale by comparison to the tax and cost savings generated for the family.

    To determine how much you ought to pay an attorney for estate planning services, you need to determine in your own mind what you perceive to be the value of estate planning for you and your family.

    If person A believes the planning is critical to his happiness and his family’s well-being, he will gladly pay far more than person B, who sees little, if any, value in the exercise. This is true even if person B receives a far greater objective result than person A.

    JD (Juris Doctor) / BA, LLB (Wits) / TEP (Trust & Estate Practitioner) / MTP (Master Tax Practitioner – S.A)