Some years ago, the Community Outreach Committee of the ABA Real Property, Trust and Estate Law Section strategized ways to introduce more students to estate planning work. The easy answer was to encourage law schools to create estate planning clinics, but law school clinics are expensive and complicated to operate. The Committee concluded that advocating for more estate planning clinics was not likely to be successful.
A simpler, more cost-effective, and more attainable solution is the program the Committee developed: Wills for the Underserved. The Committee used ideas from three professors who had created will drafting programs at their law schools: David English, at the University of Missouri; Lee-ford Tritt, at the University of Florida; and Christopher Hoyt, at the University of Missouri-Kansas City. These professors all shared their experiences and materials, and the Community Outreach Committee then developed the Wills for the Underserved program.
This article explains how the program works, the benefits it provides, and the tools available to law schools that want to adopt the program. The University of Oregon School of Law has been operating the program as a prototype and has developed a manual to make adoption at other law schools easier.
What Wills for the Underserved does
The Wills for the Underserved program pairs volunteer estate planning lawyers with law students. Each team provides basic estate planning services to one client, limited to preparation of a basic will (which may include a basket trust for minor children but no other trusts), a power of attorney, and an advance directive. The lawyer and student meet the client together and review all the client’s assets, both probate and non-probate. The lawyer typically leads the client interview, giving the student an opportunity to observe the lawyer’s techniques for drawing family information from the client. The law student drafts the documents, the lawyer reviews them and explains the reasons for revisions, and, when the documents are finished, the lawyer and student meet again with the client to have the documents signed. If the client needs a more complicated will or additional services, the lawyer can agree to the additional work on either a pro bono or fee-paid basis.
The Community Outreach Committee produced videos (seen below) that law schools can use in training students for the program. These Estate Planning Basics videos are made available to schools that want to use them in connection with Wills for the Underserved. One video covers the process of gathering information and how to plan for the disposition of property, the second covers basic will and trust drafting, and the third covers fiduciary issues and ethics. This series of videos is intended to be basic and generic—perfect for law students. A professor or lawyer involved with the program can provide state-specific nuances.
At the University of Oregon School of Law, the students watch the videos on their own and then attend two one-hour trainings. In the first training, a local lawyer explains the estate planning process in practical terms. He takes a step-by-step approach, from the first meeting with the client to the signing of the documents, with descriptions of the purposes and goals of each part of the process. In the second training, we address issues of cultural competency, including religious views about death and family property, language challenges when a client cannot understand English, and cultural aspects of property such as tribal interests in Native American property.
Having an impact
The success of Wills for the Underserved depends on the willingness of estate planning lawyers to volunteer their time. In the program, each lawyer commits to working with one client and one student. The hope is that the level of commitment will not be burdensome for the volunteer lawyers, so that the lawyers in the community will continue to work with the program, taking on a new student each year. A lawyer might choose to participate each semester or might be able to take a client only every other year. The development of a large pool of interested lawyers is a critical step so that each student who wants to participate can do so. Fortunately, a group of generous and qualified lawyers in Eugene have helped with the program.
Costs and benefits
Students do not receive law school credit for participating in the program, which dramatically reduces the cost of the program for the law school. Instead, the students gain an understanding of the practical work of estate planning and get feedback on their drafting from a practicing lawyer. Each student develops a relationship with a mentor-lawyer, and presumably the mentor will be willing to answer questions the student might have about practice. Students also can record pro bono hours for the work they do in the program.
The lawyers in the program have a chance to work with students—an opportunity many lawyers enjoy. They build a relationship with the law school and, for local alumni, have a chance to give back to their school. The lawyers also can record pro bono hours and use the hours to complete any state law pro bono service requirements.
How it benefits the participants
A final benefit is that the program assists people who need, but cannot afford, basic estate planning. Even people with minimal assets may want to nominate a guardian for minor children and create a trust for the children for whatever assets they have. Clients may have family situations not well served by the intestacy statutes and may want property to go to those closest to them and not to intestate heirs. Further, clients will benefit from an understanding of how will substitutes and wills interact. Simply providing a will is not sufficient, unless the testator understands which property will pass under the will.
Three sources of clients have been developed under the University of Oregon program: a nonprofit law firm that works with veterans, the local legal aid office, and a domestic violence clinic. The number of clients served depends on the number of lawyer-student teams, so the challenge is to have enough clients without having to turn away too many potential clients. The Oregon program has started a waiting list and will continue to use that list from year to year.
Structuring the program
The logistics of the program depend on a professor, law school administrator, or local lawyer willing to oversee the program. At the University of Oregon, I, as the professor in charge of the program, found that all of the administrative work was overwhelming. After a difficult first year when I tried to do everything, the Oregon program added an Estate Planning Fellow, who works alongside faculty to manage the program. The Fellow advertises the program to students, sets up the trainings, works with the client sources to refer the clients, and tracks participation. I solicit lawyers for the program, and then the student assigns the teams and refers the clients to the teams. This combined effort has worked well for two years now, and I have learned from the Fellows what we can do to make the program more effective.
The Estate Planning Fellowship is a competitive position and comes with a stipend for the work the Fellow does. The Fellowship is open to all second- and third-year students, with a preference for a third-year student who participated in the program as a second-year student. In addition to financial compensation, the Fellow has the opportunity to connect with all of the lawyers involved in the program and to work directly with a professor. The Fellow also participates as a team member, working with one or more clients, depending on the needs of the program.
Many law schools have constrained financial resources, so the Oregon program has sought outside funding for the Estate Planning Fellowship. A grant from the ACTEC Foundation helped to start the program, and additional funds were raised from donors who are excited by the results after two years with the Estate Planning Fellow in place.
Real-world experiences for students
Wills for the Underserved provides students with hands-on, live-client experiences. The law students gain an understanding of the practical work of estate planning, and the lawyers offer valuable insights while providing the oversight necessary to protect the clients. This program creates mentorship opportunities, which benefit both the mentor-attorney and the law student, and it exposes students to the benefits of working with the underserved.
Materials have been developed to help other law schools start a Wills for the Underserved program. The materials assume that lawyers will want to use their own will forms, so forms for drafting are not provided, but templates were created for all of the written materials used in the program—everything from text for emails or letters to lawyers, students, and client referral sources to the text of the ad for the Estate Planning Fellow. The manual includes guidelines for getting the program started, including a timeline and some suggestions based on experience. Every program will develop in its own way, but the goal is to make it easy for a school to start a Wills for the Underserved program. Ideally, the trusts and estates professor will be interested and willing to help, but in a school without a professor able to take this on, a local lawyer could volunteer to work with the law school to start the program.
Lifetime Issues, Gathering Information, and Planning for Disposition of Property
- Health care decision making and property management
- Durable powers of attorney, health care proxies, living wills, and designations of bodily remains
- Interview process – people
- Interview process – property
- Competency issues
- Creditors and other client obligation issues
- Lifetime gifting considerations
Basic Will and Trust Drafting
- Using forms
- Direction to pay debts and apportionment issues
- Specific bequests (private and charitable)
- General bequest
- Residuary bequests
- Guardians and other issues regarding minor children
- Basic testamentary trust structure and options
- Survivorship issues (lapse)
- Powers of appointment
- Tax apportionment
- In terrorem provisions
- Execution of documents
Fiduciary Issues and Ethics
- Personal representatives, trustees, and other fiduciaries
- Trust protectors
- Powers vs. duties
- Breach of trust and remedies
- Distribution issues
- Principal and income allocation issues
- Removal of fiduciary
- Limiting liability and exculpation clauses
- Ethical issues
This post originally appeared in Probate & Property Magazine from the ABA Real Property, Trust and Estate Law Section and on the section’s Lawyer’s Toolbox. The Real Property Division focuses on legal aspects of property use, ownership, development, transfer, regulation, financing, taxation and disposal. The Trust and Estate Division focuses on all aspects of trusts, estate planning, employee benefits, insurance, and probate and trust litigation.