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Estate and Business Succession Planning for Attorneys: Unique Considerations

The basics of estate and business succession planning are the same for attorneys as for other professionals.  However, there are a few additional aspects that must be considered when a lawyer is planning their estate and business succession matters.

The planning concerns that apply to all individuals, such as:

Planning for incapacity or disability;

Avoiding intestacy and probate;

Avoiding or reducing estate taxes;

Financial management;

Beneficiary protection;

Preservation of estate assets;

Choosing a fiduciary; and Maintaining privacy

all apply when planning for attorneys as well.  In addition to these typical concerns there are aspects of estate and business succession planning that come into play when dealing with attorneys that are not major concerns for most individuals.  These unique considerations include matters such as:

Protecting clients and their interests; and

Ethically winding up and disposing of a law practice.

Should an attorney fail to make the proper arrangements to protect his or her clients and matters are left to be taken care of without the proper succession plan in place, a law practice can become a liability, damaging the value of the estate instead of enhancing it and providing additional support and resources for the lawyer’s family and beneficiaries.  In cases where a lawyer fails to adequately protect his or her clients’ interests with a properly prepared estate and business succession plan, the Virginia State Bar appoints a receiver to handle any and all matters related to the law practice.  Under Virginia Code § 54.1-3900.01, the Virginia State Bar has a claim against any attorney or estate of an attorney for the fees, costs, and expenses associated with such receiverships.  When this scenario comes to fruition, whether due to incapacity, disability, or death, the lawyer’s clients’ interest, as well as the lawyer’s own interests and his beneficiaries’ interests are compromised and put in jeopardy.

There are ways to prevent the unnecessary exposure of an attorney’s clients to risk, thereby protecting his estate and beneficiaries from the intervention of a Virginia State Bar receiver and the undesirable costs and effects thereof.  An appropriate written estate and business succession plan which provides for:

Protection of clients through notice;

Protection of clients through arrangements for potential continued (and ideally uninterrupted) representation; and

Conclusion, transfer, or sale of the law practice

Planning which addresses these areas and others of concern to the attorney can enable the attorney’s business to act as a valuable asset of his or her estate.  Special attention should be given to issues such as:

Designating another attorney to assist executors and trustees;

Maintaining accurate records to assist the successor attorney; and

Planning for the continued, and ideally uninterrupted, assistance of the lawyer’s clients.

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Many unique planning options and techniques are available and can be incorporated into an estate and business succession plan, which can assist with the efficient conclusion, transfer, or sale of a law practice as well as the protection of an attorney’s clients.  One potentially beneficial tool when planning for attorneys is a special Power of Attorney specifically designed for the law practice scenario.  Such a Power of Attorney appoints a licensed attorney and counselor at law to act as the attorney-in-fact to handle those matters relating to the practice of law, in case of incapacity or disability.  When techniques and documents such as these are utilized effectively the law practice becomes an asset of the estate which can be sold, in accordance with Rule 1.17 of the Rules of Professional Conduct.

Proper planning for the unique challenges and considerations that arise when dealing with estates of attorneys and the termination, transfer, or sale of a law practice can transform a practice from a potential liability and cost of administration into a valuable estate asset.  If properly planned and implemented, a tailored estate and business succession plan for a lawyer is an invaluable investment, not only for the attorney but for his or her beneficiaries and clients.  Appropriate planning is essential for the protection of the attorney, his or her estate and beneficiaries, and the attorney’s clients alike.

Richard W. Hartman III, Esquire

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