Tara (00:51):
Welcome back to the Art of Estate Planning Podcast. As usual, it's your host, Tara Lucke. Thank you so much for tuning in.
(00:59):
Today's podcast is actually inspired by a Facebook post that I came across in a Facebook group for lawyers. And it really got me thinking the post, and I don't want to really use this as a chance to highlight, "Oh, well, I would never make that mistake," or, "We as a group would never make that mistake," or, "I'm a better lawyer," or anything like that. But it really got me thinking about ways to support us, because at the end of the day, we are all human, and the more that we can do to set ourselves up for success in our estate planning practise, then the better outcomes our clients have and also for ourselves. So let me get to the reveal. I've just dived straight in without telling you about it. But in this post, the poster said, "Oh my goodness, I just had the most terrible estate planning meeting.
(02:00):
For some reason, my brain just didn't work. I almost walked out of there without even asking them and taking instructions about the executors. How embarrassing." Something to that effect, basically. And it really got me thinking because I actually think that type of thing, even though we go, "Executors, that's the most fundamental part of an estate plan. How could you not even have a discussion about the financial controllers?" But these types of things do happen to all of us because we are whole complete people and we have so much going on in our crazy busy lives. And it might be that some days you just did not have a good sleep, you are sick, your kids are sick, your kids were up all night, you're in menopause or perimenopause or postpartum, or you have had some crazy stuff going on in your life outside of work.
(02:57):
All of this stuff can mean that we are not showing up as our absolute best self to work and it's unpredictable and you don't know. And usually when it does affect you, you are at your least capable of doing something about it. So a little bit like when it comes to asset protection, we almost have to plan for our worst self to show up that day. Even if it's not you and things going on with you, if you have a team where you really want to create some scaffolding and resources to support your junior lawyers and team members to be more autonomous and empower them to take a lead and learn the things, especially where you can't supervise every little detail of things, all of those scenarios sort of lead us to the solution that instead of just having a idea in our head about how the matter runs and some templates, that we actually need a comprehensive system for our estate planning.
(04:09):
And that's what we try to do at the Art of Estate Planning with our resources, particularly our works precedent package. It's not just a will precedent, it's actually a complete system for your estate planning files. So what do I mean by that? So one of the things that instantly came to mind for this scenario, and I was visualising myself in there, is that I always ran my matters with a detailed agenda. And I'm talking four or five pages of an agenda that was prepared prior to the meeting based on the material I had and the information I had. So you might not customise it if you are just doing first meetings fresh. I always ran my meetings where I had nearly all the background material prior to the meeting, so I actually could customise it really heavily. But even things like, are they having minor children or are their children adults?
(05:10):
The decisions and conversations that you make in those scenarios are different. So having the different branching of that conversation and instructions you need to get, as well as things like making sure you are actually covering all the risk bases about have you made loans to people? Have you made gifts to your children? Are you expecting an inheritance? Is anyone likely to go overseas? Tell me about the relationship between the children. Are you comfortable with your financial controllers acting in the best interest or do you want to put in some checks and balances on them? All of those kinds of things that if you ask the right question, you might open up a can of worms that would not have been revealed to you had you not asked the right question. So that all needs to be on your agenda. Even identifying opportunities like have you got adult children?
(06:06):
Are you of a certain age? Should I be making a referral to a financial advisor to think about withdrawing your super and re-contributing it so that we are not having to pay a large amount of tax when that super goes to your adult children? If you don't have that in a checklist, those things are really easy to overlook in the meeting, especially if you end up sort of following the whims of the client in terms of what they want to talk about. And you can find that if you're not sitting there checking off each thing as you go, and I literally, I just kept it low tech. I literally had my Word version of the agenda. Our precedent at the Art of Estate Planning has checked boxes and I would tick it off as I went or cross it out as I went. And my clients are completely fine with that.
(06:55):
They kind of want you to take notes. For me, it always feels a little bit like when you go to a cafe or a restaurant and you give your order and the person serving you doesn't take any notes. I'm always nervous that they won't get it right. And the same goes with you. Why put that pressure on you? Just have it written down, add things to it. It can almost serve as your file note, especially if you've got space to add the notes in next to it. So I think you would very rarely miss a conversation about executives and financial controllers if you have the scaffolding of an agenda to follow. The next thing I think would be making sure that your documents and templates integrate with your document management system or practise management system. Now that's not going to impact or infect you from taking the instructions until in your meeting.
(07:50):
You'll obviously realise you're drafting and you don't have instructions on executives to keep your matter efficient and ultimately profitable. That's the point, right? We've got to maximise our profit here. You want to get all of those conversations and have those instructions taken in the meeting so you're not calling up, clients have lost that mindset and they're out of the zone. You've got to capture everything you can reasonably in the meeting so that when you go to drafting, you've really got everything set out there for approval for the clients or you can narrow it down to a very small handful of issues that they need to turn their mind to. But I'm talking about those days we need an extra coffee, if our brain is foggy, if you've just come back from a holiday and it takes a while to get out of first gear, whatever it is, having precedents that integrate with your practise management system, particularly from a strategy perspective, will also improve and manage your risk and reduce the likelihood of mistakes when it comes to actually drafting the documents.
(09:01):
So for instance, with our precedents which have coding for action step and smoke ball, you simply put in, have you got adult children or minor children? Are you setting up the testamentary trust to benefit the surviving spouse or only after they've both died? How many testamentary trusts? How are we managing foreign persons? You answer all of those questions and the right clauses come in. So you don't have to sit there and think, oh, which way does it go when I'm overriding the 30-day survivor rule with the testamentary trust? Do I do that if the trust is set up in the first instance or only if it's set up after we both die? The right clause just comes in depending on what you've told the practise management system your strategy is. So those types of things mean you're not worrying about the basics and then your brain is free to think about the higher level bigger picture strategy like, okay, what are we doing with the family home?
(10:04):
Do we need a right to occupy? Do we need to preserve the principle place of residency GT exemption? If you are bogged down in the really basic stuff, your brain almost gets fatigued and it's very easy to overlook those things. Also, the biggest risk I think when it comes to errors is almost what's not in front of you, what's been missed. It's actually, I think, especially as lawyers, it's easy for us to pick out the mistake that is in front of us and go, that is the wrong clause, that is a typo. It's the things that are missing that are really hard to pick up, and that's actually probably where our biggest risk exposure lies. So firstly, I like to use checklists on our file. So I'm all for a digital file. That said, when I used to work on a matter, I did have everything for that matter printed out as well, and I had almost a temporary physical file, just in a manila folder or a bulldog clip or whatever, however you want to organise your stuff.
(11:14):
And then at the end of the matter, that would all get shredded because we had the online digital presence of the whole file as well. But I still need to see something physically. And I don't know if I got taught that. I think every time I think about that comes into my mind is David from Lexon in Queensland, our insurer, David Durham. Now he has actually retired I think this year, but he has left a lasting legacy, which is emphasising to all of us how much your brain skips when it looks at things on a screen compared to on paper. And so for that reason, I always print things out. I actually can't believe this. My husband had to do a thesis for his PhD. It was like, I don't know, 50,000 words. It's like a thick book and he didn't print out a single page of it and I cannot work out how he managed to do that, but my brain does not work like that.
(12:13):
And maybe yours doesn't either. But one thing that I think can be really helpful is use a workflow checklist. So again, we offer these in the Art of Estate Planning Works precedent package, but it's literally like, have you organised the meeting? Have you received back these original documents? Have you lodged the BDBNs with the super fund? Have you received confirmation back? Have you sent your final closing letter? All the basic procedural stuff. So whether you have it as old school, like a checklist that you put on the front of your file matter and you tick it off and initial it as you go, or if you have actually integrated that into your practise management system, I know Action Step has a really good workflow management. However you do it, I do think that's really critical because if you haven't sent off the BDBNs or they haven't been sent off by whoever's responsible for that task and your client dies and the super fund says there's no valid BDBN, that is a whole mess that could have so easily be avoided by one item in a checklist.
(13:27):
The other thing about checklists, we've got two extra checklists. So these are risk management checklists that we include in our works package, and I classify them as the annoying stuff and the big stuff. So the annoying stuff is like, I think it's a page and a half, maybe not even that long, and it's literally just a final check to go through and be like, are our page numbers working? Have we searched for clause zero error cross reference? Have we updated our cross referencing? Have we run a spell check? The most simple of things, but we don't want to be relying on you thinking to do each of those every time. And also because it's in a checklist, you don't even necessarily have to do it. It's actually the perfect thing to give to someone else to have a second set of eyes. So when I started at working at McCullough Robertson in 2007 when I was in my final year of uni, everyone kept saying, "Have you had this four eyed?
(14:38):
Can you please four eye?" And I was like, "What on earth is four eye?" And it's literally four eyes on something, and it's literally like another person just checking something out. And that was built into the culture and the practise of that firm. So what do you do when you don't have an enormous team of people and you are a sole practitioner or a boutique firm, maybe you don't even have anyone at all. So I do still think there's ways to get your four eyes. So if you have a secretary or an admin support or even a uni student or somebody, they don't need any legal background to do the four I on the basic annoying stuff. That's word processing and just making sure the systems have worked. I think that checklist even has do a control F on the testator's name just to make sure that the testator's name hasn't inadvertently been swapped and you're mentioning the wrong client or you are mentioning the spouse when you meant to mention the testator and that type of thing.
(15:45):
So a secretary, an admin person, a law student who comes in and does your binding, they can all do that work for you. If you don't have anybody and you're an ultra sole practitioner, look at using AI. And as much as I'm like, "Oh, AI," I do think there's a role for AI on that type of thing. If it were me, I would use Microsoft Copilot. This is not advice, but the choice I would make is Microsoft Copilot because I'm a Microsoft girly and we use SharePoint and Outlook for everything. And the privacy and system requirements that you have set up to protect the security of your Outlook and your documents also applies to anything in Microsoft Copilot. So you are not exposing or breaching any privacy or confidentiality and breaching privilege by uploading those documents into the LLM. So if you use Copilot, you should be fine.
(16:49):
It's all within that same ecosystem. And you can literally give it the checklist for the annoying stuff, the last check and say, look at these documents, compare it against this and produce a report and pick things up because yeah, it's embarrassing. We hate it. I mean, I hate it. I'm sure you do when you get something back and the client goes, "This says cross-reference error," and you're like, "Oh my goodness, I've worked so hard on getting the technical stuff correct that I missed this word processing issue and it's bad for your reputation. It's demoralising and it doesn't fill the clients with confidence either, so that stuff is easy to fix. Hi, it's Tara here. I hope you enjoyed today's episode. If you are ready to dive deeper into your estate planning practise, there are two ways that I can help you. Go to www.theartofestateplanning.com. Au and check out our free resources.
(17:50):
There's so many checklists and tools to help you for free. And while you're there, check out our range of estate planning precedents. We specialise in testamentary trust precedents that are easy to understand, integrate with Clio, Smokeball, Action Step and Leap, and come with extensive training on how to use them with clients and understand the legal principles behind the clauses so that you can start offering testamentary trust to your clients with confidence. Go check out www.theartofestateplanning.com. Au. It's time to start feeling confident preparing and advising on testamentary trust wills. The next thing I would say is the big stuff checklist. So this is like a 10-page checklist where it goes through basically the key outline of the estate plan and it's for a reviewer or a second checker. And again, if you're a sole practitioner and you don't have someone doing draughts and then you can review, maybe you just do this on different days.
(18:57):
You draught your documents and then the next day or you go and have lunch and after lunch, you use that checklist to make sure you haven't missed anything. And that is going through the technical legal issues. Even the most basic things of should this be made in contemplation of marriage or divorce? What is happening with super? Have we got shares going to multiple people and how are they going to own that joint tenants or tenants in common or should they be gifted as specific parcels? Do we need to equalise things? So the main residence again, foreign persons again, all of those things that you would look at big picture on the strategy that if you are bogged down in the clause drafting and tappy-tappy typing out your clauses that you might forget to come back to and deal with. It's like, okay, we've got a cash gift to somebody in a couple's will.
(19:58):
Do I need to insert a clause to just make it really clear that the cash gift happens once only after they've both died and even though it's in both wills, they're not double dipping on that cash gift? Random things like that, they don't come up on every single matter, but it's quite important to avoid a construction application and to get your drafting done correctly. So I really think using those checklists when your brain is a bit foggy and you may not be thinking about all those extra things, having the checklist that takes that risk away from you. And it can be a living thing as well. And if you come across a case or hear a war story where you think, "Ooh, they messed that up," put that on your checklist so you don't mess it up in the future. So I'm an enormous fan of checklists.
(20:53):
I just think we can't rely on ourselves to be our best person every single day of the year. Now, another thing I'm a huge fan on, and if you are in our TT Precedents Club, you will know this, is estate planning flow charts. So what that is is basically a diagrammatic representation of where everything is going and how it's all looking when you die. So we have templates for this in our precedent packages for the works and also our TT Precedents Club. It doesn't take that long. I think firstly, people get overwhelmed with the idea of diagrams because they feel like a lot of work and they aren't as easy to automate as other things. But I do think the return on creating them is enormous. Clients love them in my experience because they turn a 40-page document into a three-page document or a two-page document, and they can see straight away where things are going.
(22:02):
And so it's easy for them to identify where things are not right and also to get comfortable. So it cuts through the technical jargon. They can understand where things are, so they feel like they know and appreciate what's happening under their documents. I also love them for us as the lawyer, even if you don't want to send it to your client, I don't know why you wouldn't, but if you don't even want to use it for the client, they're so important for us as the lawyer advising on the matter because that old cliche, a picture tells a thousand words, you can see as soon as you pick up that matter what is going on and looking at things from a different angle highlights the gaps. If you start looking at it from the perspective of not of a written document with the clause after clause, but if you actually look at it as a one page of where everything is going, you can see, oh, we haven't dealt with this asset, or that is actually meant to be a specific gift.
(23:09):
I didn't put that in there, or that's a specific gift and it's a home. So do we actually need a right to occupy as well? Or actually there's only enough money to fund that gift if the clients die in this particular order. Something like that is really hard to conceptualise and pick up when it's in a written document, but when it's on paper, you can really see it. So just if you haven't seen one of our diagrams before, they're especially useful with testamentary trust. So I'll just try and help you visualise it. There's your client attestator sort of up the top centre, and then they're people who are receiving the gifts. So whether it's a triangle for a testamentary trust or an individual, and then we just sort of have arrows going to them saying, "You received this much, this much of the super, this much of our property, this much cash, or this much of the residue which comprises those assets." And then even just seeing that you go, "Hold on, that person's receiving the super in the residue, but they want to get it through a testamentary trust, but they're a minor and a surviving spouse, so that actually we're going to have that money in a separate super proceeds trust.
(24:30):
How much is going to be in the main testamentary trust versus the super proceeds trust?" It can just really highlight discrepancies and what the physical reality is going to be like after the clients truly pass away. So helping with the stress testing. And on that note, I have got an episode coming up soon about stress testing your estate plan. So I'll talk probably more about the flow charts there, but the other benefit of the flow charts is when your client comes to you down the track after they've signed everything, it might be a couple of years down the road and they want to make a change or do an update or they just simply say, "We've bought this property, we've sold this property, do we need to change anything?" If you can get and look at your flow chart, you can get up to speed so much faster than trying to work through, "Okay, what's the file note with the asset summary?
(25:30):
What's the file note about what we said each of those were going to do? Let me have a look at the will." If it's in a diagram, you can basically get your head around it in two minutes. So it's just helpful for you as a record on the file, helps when sending it to the financial advisor. I just think every matter needs an estate planning flow chart personally. So those are some ideas about how to build out and scaffold a proper system around your estate planning process. As I said, we all go through things. We are all human, and it's also not just for those days when you've got brain fog, but for your whole team as well. And what I love about having a system is that it's a way for everything in your brain as the founder to trickle down, you train your team, you put in support for them, you put in risk management so that eventually your team members can be as good at this as you are as well.
(26:33):
So we do our best at the art of estate planning to build this out for you. Everything that we have with our resources is highly customizable, so you can either just stick with what we have created for you or customise it based on your preferences, the way you like to work, the resources you already have, but it's a big starting point so that you don't have to start from scratch. If you've never used any of these resources before, you might just start with our base systems and processes. I mean, to me, they are best practise. That's why we've built them like that and we agonise over everything. We update them frequently when we hear things through the TT Precedence Club or even when I hear see Facebook group posts about things that people are struggling with. So we really do labour over them to make them the gold standard.
(27:27):
But at the same time, I know you guys love what you do. You all have different perspectives and approaches, so you aren't stuck with just doing everything the art of estate planning way. You can customise them as well and have the best of both worlds. And yeah, I would really encourage you, I think the lawyers that I see in our TT Precedents Club who are running very small teams, so not small in revenue or numbers or clients, but lean teams have all of this system infrastructure around them to support the team members and make everything go further and to manage their risk. So I would encourage you, if you're listening to this, to think about how can you build out more of a system to scaffold what you're doing instead of just winging it because it's great to have everything in your head, but that creates issues as a founder of a firm.
(28:24):
It doesn't really support your team, and it also leaves you exposed on the days when you're just simply not operating at your normal standard. So I don't want to freak anyone out, but I hope that has given you some food for thought. Thank you so much for tuning in and we'll be with you next week.
