By: Heinz J. Brisske

Legacy planning. What thoughts, emotions, visions and ideas does that term conjure? We know what estate planning is, and we’ve all become more familiar with asset protection planning, retirement distribution planning, charitable planning, and business succession planning. Legacy planning is all of those things and much, much more. It is a flexible practice model that transcends basic estate planning.

In the good “old” days, many of us were practicing the standard model of estate planning. Probate avoidance and estate tax avoidance drove business to our offices: probate was a daunting, sometimes expensive process, and many, if not most, of our clients had taxable estates. That situation has changed dramatically over the last several decades, and so we’ve redefined ourselves. But most of us are still doing basically the same thing, and doing it in much the same way. All the while, most states have simplified the probate process, and the marginal federal estate tax rate has gone from 45% to an effective rate of 0%, because most of our clients don’t have estates large enough to be affected by the federal estate tax.

Furthermore, estate planning is becoming commoditized. Estate planners risk becoming irrelevant in this technological environment. Some of us are facing competition from the likes of Legal Zoom and other online Will and Trust apps. Although our wealthier clients realize that they can’t draft sophisticated estate planning documents on their own, even those clients are being lulled into a false sense of security by the higher exclusion amounts and by concepts such as portability. If the government will do it for them, why do they need us?

What’s driving clients to your office today?

What can we do to enhance our practices, to drive business into the office, that also benefits our clients? Does the standard model of estate planning provide value equal to its cost? Furthermore, are we connecting with our clients on a level commensurate with the importance of the issues involved? Or are we simply drafting what clients see as “boilerplate” documents that do nothing more than transfer our clients’ physical assets to the next generation?

Legacy planning may provide the answer, or at least an answer. It draws on all aspects of estate planning, but adds an intergenerational, personal and family component that is missing from the “standard model.” Scott Farnsworth, of SunBridge Network refers to “priceless conversations,” estate planning based on “our native language of story.” In one of his blog posts (A New Breed of Planner, February 20, 2013), he summarizes his thoughts as follows: “I believe the best advisors are those who are able to engage their clients on the story level and then use the insights and understandings gleaned in that exchange to build technically brilliant plans that reflect the values, personalities, fears, dreams, wisdom, and life-learning of their clients and their families.” (emphasis mine)

What are some of the elements of legacy planning?

Legacy Planning involves the next generation. Legacy planning, by its nature, involves participants from several generations, whereas traditional estate planning usually involves only the estate attorney and the first generation in the preparation of estate-planning documents, without involvement of successive generations. In our office, we offer every client a Family Meeting, where we encourage participation of the clients’ children and fiduciaries. Those meetings give us the opportunity to facilitate important discussions between clients and their heirs that develop mutual understanding and avoid future conflict. Every family can benefit from conversations that bridge generations; those discussions often bring about understanding and harmony, instead of allowing potential conflicts to surface down the road.

Legacy Planning deals with charitable giving goals. Based upon a U.S. Trust survey conducted in 2012, a majority of high net worth individuals say that those who have achieved significant wealth have a responsibility to pass on a tradition of philanthropic giving and create positive social change. Not all of your clients, obviously, qualify as high net worth, nor will all of them be interested in charitable giving and thus share that sense of responsibility. This, nonetheless, is an important aspect of legacy planning for many. Understanding a client’s charitable history can provide valuable insights into their giving patterns, practices and interests.

Legacy Planning has a hopeful component, and is ultimately better received.
Most people generally dislike and avoid discussions of incapacity, death and the transfer of their estate assets. In part, this is simple denial. But it is also because of the potential for emotional and financial misunderstandings and conflict, which is very intimidating to most of our clients. Legacy is a more hopeful concept than inheritance because it includes all facets of an individual’s life. The Allianz American Legacies study found that people of all ages were uncomfortable discussing the one-dimensional topic of leaving an “inheritance,” but embraced the idea of leaving a “legacy.” Legacy, for them, captured more than the mere transfer of wealth – including sharing their family traditions and history, life stories, values, hopes and dreams.

Legacy Planning broadens the planning objectives beyond estate tax and probate avoidance. Many estate planning documents, according to our clients, are too boilerplate and impersonal, and don’t address anything beyond the mundane issue of what’s to be done with financial assets. They don’t account for the “emotional assets” of the client, and include no reference to caring sentiments and personal expressions. In short, they don’t adequately provide the support or encouragement that heirs seek in situations of unexpected loss. Many clients feel that estate plans prepared by their attorneys are their attorney’s plans, not theirs, because the attorney decided what the estate plans should contain very little input from the client. The documents contain Article upon Article and Section upon Section of legal jargon that the client neither understands nor cares much about. The documents are antiseptic, dry and impersonal.

Legacy planning includes a discussion of how clients can utilize wealth for meaning and impact, and how they can purposefully account for family values and closely-held beliefs. It’s a type of planning approach that imparts wisdom to heirs, and guides inherited assets. It can transform the client’s thinking and change the focus from money, material items and legal documents to creating roots and establishing a family narrative. Clients are encouraged to think about how they would like to positively impact and influence the future generations of their family in ways that extend beyond monetary wealth.

Legacy Planning strengthens client relationships. By adopting legacy planning into your practice you will continue to deepen client relationships by seeking out stories that reveal who your clients are and what they value. This type of values-based approach will ultimately help you to better manage the human side of wealth and further solidify client relationships.

Legacy Planning differentiates. In the attorney/client context, trust takes a very long time to cultivate. Clients still harbor skepticism and caution in dealing with professionals, and specifically attorneys. Trust has to be earned; it’s not readily given. Your recitation of code sections and references to state statutes won’t impress your clients, and certainly won’t endear you to them or build trust in the relationship. Begin to incorporate legacy planning into your practice and you’ll provide a much deeper, more meaningful client experience and be a better choice for the next generation as well as your clients. Sharing stories, showing empathy, and demonstrating an ability to listen has a much better chance of creating a trusting relationship. No doubt you have heard the saying that “People don’t care how much you know until they know how much you care.”

Another benefit of your differentiation applies to the attorney/advisor relationship. In talking to referral sources, you will have a unique practice model to talk to them about, something that sets you apart from other estate planners, and gives advisors a reason to refer you.

You will be able to command higher fees, because you provide a higher level of service and a much better value proposition. Your client retention should increase, because you have connected with your clients on a level unlike other attorneys, forming a strong, emotional bond not “normally” found in an attorney/client relationship. That personal connection is also a hedge against commoditization: no piece of software is likely to replace the relationship that you develop with your clients and the personalized services you provide.

By adopting a legacy planning model you will continue to deepen client relationships by seeking out stories that reveal who your clients are, what makes them tick, and what they value. This values-based approach will ultimately help you to better manage the human side of wealth and further solidify client relationships.

The extent to which you, the estate planning attorney, involve yourself in legacy planning is completely up to you. Some attorneys guide their clients through the process. They provide helpful suggestions, possibly the outline of a legacy letter, and then let the clients create the story and life lessons they want to transfer to the next generation. At the other end of the spectrum is the attorney who works in tandem with the client to make the legacy come to life.

There are various options for capturing your clients’ legacy. You may opt to have them write a legacy letter. Your client can choose to write a legacy letter on his own, or you can provide an outline for your client to use; your involvement can provide the impetus, and will ultimately determine whether or not it is or is not successfully written.

An alternative is a legacy video or personal documentary, which you can facilitate by asking the questions that your client answers on the video. The questions can be pre-prepared or answered off-the-cuff. The video can be recorded professionally, or you can record it in your office. It can be re-recorded or updated as circumstances warrant. A legacy video can provide a more personal and emotional delivery of the message than a letter in written form. With professional help, the end product can cover your clients’ family history and give the legacy video higher emotional impact.

Whether or not you are merely providing instructions to your client or actively participating in the design and creation of the legacy documents/videos, you may want to make a list of topics that your client would like to discuss:

“Is there a life event or experience from which you can draw a lesson? For instance, did you bypass an opportunity that you regret not having taken advantage of?”
“Do you regret cutting short your education? You can use the legacy letter or video to instruct grandchildren not to do the same.”
“Perhaps you feel the need to explain a decision you made or a direction you took.”
“Do you want to tell your children how proud you are of them and the choices they’ve made in life?”
“Is there something about relationships that you’ve learned over your lifetime that you feel will help your children/grandchildren as they live their lives?”
“Are there values you hope your descendants will adopt and live by? Do you want to pass on a life lesson or teach them a moral or ethical principle?”
“Do you want to record a family history and impart lessons you learned along the way?”
“Maybe you just want to say ‘thank you’ for the support they’ve given and the love they’ve demonstrated throughout their lives.”

“Priceless Conversations,” developed by Scott Farnsworth and referred to above, provides some great examples of questions that can be used for your clients’ responses in a legacy video. For example, “What was the best financial decision you ever made? How do you define ‘true wealth’? What about your children makes you proud to be their parent?” The clients select the topics and specific questions most relevant to them and they can then record their answers on audio or video to be shared with family or saved with estate-planning documents.

From the clients’ perspective, you will be redefining wealth. What, really, is the most important asset that your clients have? Their stocks and bonds, or the lives they have lived, the lessons they have learned, and the history they have created through the relationships that they fostered during their lives? Legacy planning is a multi-generational planning approach that focuses on smoother transitions of wealth, less family discord, and the effective transition of family values and leadership. It can include the clients’ history, both in stories and in pictures, a legacy letter or, with today’s available technology, a legacy video or video documentary.

One reason this legacy planning approach is so critical to the future health of your business is because every year for the next 50 years, $1 trillion will pass from one generation to the next. This is the greatest wealth transfer in the history of the United States, according to Paul G. Shervish, a professor of sociology and director of the Center on Wealth and Philanthropy at Boston College. The relationships you develop will determine whether your clients’ heirs turn to you for guidance and advice. Unfortunately, most industry statistics currently indicate that the vast majority of inheritors will change advisors instead of sticking with the ones that their parents or senior family members used. Begin to incorporate legacy planning into your practice and you’ll provide a much deeper, more meaningful client experience and be a better choice for the next generation as well as your prospective clients; the children, grandchildren or other heirs will be much more likely to continue the legacy created by their parents, and use you as their advisor.

Planners will benefit from the legacy planning approach for navigating family dynamics and effectively building trust and confidence with the next generation. They will also benefit from a process that empowers clients to address many of the non-financial aspects of wealth transfer and helps them to start thinking about the creation of a broader family legacy.

You probably have a host of excuses not to engage in legacy planning: you feel that you are too logical and intellectual to get into all that warm, fuzzy stuff; you are an attorney, not a psychologist; your clients come to you for legal advice, not discussions of personal problems and issues, etc. I suggest that those reasons comprise your paradigm of the estate planning process, not your clients’. For most of our clients, we are their first contact with an estate planner. They have no idea what to expect, and we create their paradigm. If it is more comfortable, or perhaps even more effective, for you to acknowledge the “standard model” paradigm, and then to use your legacy planning process as a contrast to that paradigm, I encourage you to do so. I have used that approach successfully for years when discussing our client maintenance program with our new clients.

I am reminded of an experience in my own life. At the time, I didn’t relate this experience to my estate planning practice, nor to anything like legacy planning, since I didn’t know such a thing existed at the time. My own mother, who was born outside this country and speaks broken English, had begun to prepare a personal documentary, or history, of her life. She was in her 80s at the time, had seven grandchildren, and a growing number of great grandchildren. It was important for my mother to document her life so that her grandchildren would understand where she came from, what she endured, and how those experiences molded her and made her who she became. She wanted her family to understand her struggles as a young girl growing up on a farm in what was then Romania, in having to flee her home in horse-drawn wagons when the Russians took over in the years just before World War II, eventually growing up in Germany. She wanted them to be aware of how formative her experiences as a young woman were, and to give them some context for their own lives.

But her English, she felt, made it difficult to express herself adequately, and to tell her story. She asked me to help her write her “memoir.”

From that point forward, for several months, every weekend that I could spare, I picked her up from her home and brought her to my office, where we sat in front of a computer while she “dictated” to me and I attempted to faithfully record her stories. I asked questions to try to fill in some of the parts of her story when she didn’t completely connect the dots, or where she left out relevant or important facts. The more she talked, the more I learned. The deeper she delved into her story, the more interested I became. I had always known the outline of her life, but never the details.

Once we finished the narrative, we added pictures, which involved going through albums, all of which she had organized over previous years. The result was a bound “book” with relevant pictures that went back several generations before my mother was born to the present. The history of her relationship with my father, their wedding pictures, and many other family details rounded out her story.

The overall effect upon me was transformative. I learned about things in my background of which I had no prior knowledge. I got insight into extended family members, many still living, that I could not have had from any other source. And I developed a relationship with my mother beyond our normal, familial engagement over weekends and holidays when we saw each other for a few short hours. I know that working on and finalizing that memoir meant the world to my mother. Every one of her grandchildren, and several other family members, received that bound recollection for Christmas the year it was completed.

What if you could bring that experience to your clients?

This article appeared in the 2017, Q1 edtion of The WealthCounsel Quarterly, a publication of Wealth Counsel, LLC, a community of over 4,000 trusts and estates attorneys with a common goal to practice excellence. To learn more, visit