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Wills & Estates Lawyer AMA


Mountebank
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Mountebank
  • Lawyer

Further to @ZineZ's post re needing further AMAs (I kind of assumed there wouldn't be much interest in this area, but here it is):

I'm a Wills & Estates lawyer. Ask me anything!

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LMP
  • Law Student

Thanks a lot for doing this! I'm very interested in this area so I appreciate the chance to ask some questions. 

 

1. When I think of Wills and Estates, I often think of a solo practitioner or small firm. Is this more or less the state of the industry? If so does this make it more difficult for junior lawyers to find roles in existing operations (rather than hanging their own shingle)? 

 

 

2. I'm not sure if this is work that you do, but I'd be curious as to how much you touch on estate litigation in your practice? It is an area of interest to me but it seems somewhat removed from a lot of the work you imagine to be the bread and butter of a W&E lawyer. If it is something you do would you be able to speak more to what a typical estate litigation process looks like? 

 

3. When it comes to the solicitor aspect of the job, to what extent do you need to seek out clients and drum up business? Would you say it's a large portion of your job or does that need drop off once you establish yourself? 

 

4. For those who are interested in the field and are currently in law school, what can we do to signal an interest in the field or begin getting some experience? Where would one seek out opportunities in W&E? Are there any courses you believe would be useful for aspirants in this field? 

 

Thank you for taking the time to answer, it is very much appreciated. 

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Mountebank
  • Lawyer
1 hour ago, LMP said:

Thanks a lot for doing this! I'm very interested in this area so I appreciate the chance to ask some questions. 

My pleasure. See my answers in bold below.

1. When I think of Wills and Estates, I often think of a solo practitioner or small firm. Is this more or less the state of the industry? If so does this make it more difficult for junior lawyers to find roles in existing operations (rather than hanging their own shingle)? 

Yes and no. Wills & Estates lawyers are represented at firms of all sizes, including some boutique firms (although these tend to be more litigation than solicitor focused), but at very large firms, I think they're viewed somewhat like family lawyers (i.e., you keep one or two around to service the personal legal affairs of the HNW and UHNW clients, but it's not viewed as a separate practice area to grow and develop) and so the demand isn't high at those firms. There is a current need at some non-boutique Toronto firms for new partners or senior associates with portable books, but that's about it.

Otherwise, yes, most Wills & Estates lawyers are at small firms (boutiques and small partnerships) and some mid-size regionals. Solo lawyers who practice exclusively in this area are less common. For instance, although I call myself a Wills & Estates lawyer, I also do some real estate and estate litigation, both of which are incidental to the main practice. I do the real estate mainly because these are complementary practice areas and, as I'm a sole practitioner, it's not great for business if I have to refer every real estate matter out (whereas, at a larger firm, I would refer a real estate matter to a colleague at the same firm). More on litigation below.

2. I'm not sure if this is work that you do, but I'd be curious as to how much you touch on estate litigation in your practice? It is an area of interest to me but it seems somewhat removed from a lot of the work you imagine to be the bread and butter of a W&E lawyer. If it is something you do would you be able to speak more to what a typical estate litigation process looks like? 

I do practice estate litigation, but it's a narrowly focused practice (i.e., it doesn't bleed into family, guardianship, real estate litigation, or even general civil litigation arising within an Estate). Within estate litigation, I basically only touch Will challenges, dependant support, mutual Wills, and, rarely, fiduciary/accounting cases. I've done some litigation, also, involving settling claims/debts, but I would only do this if it's basically a trust claim that's being litigated and not if the subject matter ventures into anything commercial. Lately, I've been taking on more litigation files due to the demand (which means greater availability of quality files).

The litigation files are my least favourite, and I think of myself as a solicitor, but I still take them on for two reasons: first, this area is exploding and there's a lot of good work out there that's hard to turn down; and, second, it keeps me plugged into the Estates bar and seems to force me to be more up-to-date on the law. As a sole solicitor, I'm very isolated in a lot of ways. But when you're litigating, you're part of the lawyer club and it helps to generate business too.

If you're interested in estate litigation, though, you're in luck because business is booming! I've been trying to get someone in my office for a while to take on some of these files, but it's tough to find people with litigation experience. Unlike solicitor side, where there's some light demand for new associates, I think you'll find that estate litigation boutiques are fairly regularly recruiting new grads at this time.

Estate matters basically never go to a full hearing or trial and many of them don't even have any contested motions before the Court. Here's a typical process in an estate lit matter as far as my experience goes (bearing in mind that most of my matters are not in Toronto, which has its own separate procedure for Estates, including mandatory mediation. Outside of Toronto, mediations are not only not mandatory, but the legal culture has a dimmer view of them as well):

A. Initial conferences with client to review situation and relevant documents;

B. Prepare opinion to client re: next steps;

C. Initial letter to opposing counsel adverting to client's position, either making demands or defending against opposing party's assertions;

D. File, or receive, Notice of Application (possibly a Notice of Objection/Notice of Appearance, depending on procedure used);

E. Telephone calls with opposing counsel to take everyone's temperature and negotiate a consent order;

F. Use return date on application for consent order granting various interim relief, but always compelling productions;

G. Obtain productions and attempt negotiated settlement. If unsuccessful, proceed to H;

H. Order directing matter be converted to an action, fixing the issues to be tried, setting a timetable, order for mediation (if not a mandatory mediation jurisdiction), as well as various other interim relief, as applicable, such as appointment of an ETDL;

I. Attempt negotiated settlement again. If unsuccessful, proceed to J;

J. Mediate and obtain settlement at mediation. If unsuccessful, proceed to K;

L. Attempt negotiated settlement again. If unsuccessful, proceed M;

M. Discovery, including examinations; and

N. Settlement.

Occasionally, the matter is settled after step C. or D. More often, it's settled at around Step I. or J. Occasionally, you don't get a settlement at Step N., in which case you seriously consider who the problem is and, if it's your client, whether you should fire them. The whole process takes anywhere from 3 to 60 months.

3. When it comes to the solicitor aspect of the job, to what extent do you need to seek out clients and drum up business? Would you say it's a large portion of your job or does that need drop off once you establish yourself? 

It really depends. When I was at a larger firm, the work was already there, so I basically just serviced the existing practice. As a sole practitioner, I'm building my practice. That said, for this area, it's hard to seek out clients directly, especially since each file is worth so little that it's not worth your time. I get some cold calls, usually through my website, but most of the work is by way of referrals from other lawyers (and sometimes financial advisors, realtors, etc.) and also from my existing clients. The goal is ultimately to have a self-sustaining practice, but I don't yet have enough clients for that to be my sole source of work. I used to do promotions or public talks, etc. but found I got little return on that. Now, I just chat with other lawyers (which I enjoy doing) and they send me work sometimes. It's a way better system.

So, building your network is the most important thing. This is one of the reasons why the estate litigation helps to build the business - just having regular contact with other lawyers, talking shop, etc. helps to develop new referral sources.

As far as cold calls go, I get a few viable calls a month (and many more non-viable ones). My assistant is the gatekeeper for these and I don't give free initial consults, which tends to filter out the bad ones.

4. For those who are interested in the field and are currently in law school, what can we do to signal an interest in the field or begin getting some experience? Where would one seek out opportunities in W&E? Are there any courses you believe would be useful for aspirants in this field? 

Well, to start, you must take the Wills & Estates courses offered at your law school. When I went to Queen's, there were three: Estate Planning, Estate Litigation, and Trusts. They're all important but, arguably, trusts is the most critical as it's foundational, ancient, and not codified. It's the hardest to learn, but probably the most interesting.

Take and do well in those courses. It's rare enough to have new grads who even do that.

Thank you for taking the time to answer, it is very much appreciated. 

 

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LMP
  • Law Student

Very much appreciate the reply, all excellent information. One more question if you don't mind, you mentioned you do a fair bit of real estate in addition to your wills and estate work. From this I take it that it isn't uncommon to have another area of law to supplement ones practice? I could see something like real estate or family law blending quite well.

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Mountebank
  • Lawyer
2 minutes ago, LMP said:

Very much appreciate the reply, all excellent information. One more question if you don't mind, you mentioned you do a fair bit of real estate in addition to your wills and estate work. From this I take it that it isn't uncommon to have another area of law to supplement ones practice? I could see something like real estate or family law blending quite well.

Yes, a lot of lawyers practice in two areas, especially if they're complementary, although there are few generalists anymore. I do real estate because it's incidental to the Estates practice and I want to be full service when it comes to Estate work. I can't be referring out my Estate sales. I've also found having real estate knowledge to be useful in litigation matters.

Real estate and family are, in my anecdotal experience, less commonly paired, although I know lawyers who do both. The practices are run very differently and I think different personalities are attracted to those areas.

Also, family lawyers hardly ever need to supplement their practices. They're swimming in clients.

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Vadoet
  • Law Student

Hi Mountebank, thanks for doing this AMA. I'm a 1L interested in potentially practicing in estates and trusts. LMP asked some of the questions I was curious about, but I have a few of my own:

1. When did you decide/feel comfortable enough to start your own solo practice?

2. How do you differentiate your practice from notaries? Do you feel like you compete against notaries for some of your work?

3. How much of your practice do you spend planning and creating trusts?

4. What does a typical week/month look like for you?

5. What type of person is your typical client?

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Vadoet
  • Law Student

Another question occurred to me:

6. What percentage of your clients are repeat business? How often do you do work for them?

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Mountebank
  • Lawyer
11 hours ago, Vadoet said:

Hi Mountebank, thanks for doing this AMA. I'm a 1L interested in potentially practicing in estates and trusts. LMP asked some of the questions I was curious about, but I have a few of my own:

1. When did you decide/feel comfortable enough to start your own solo practice?

Take a look at the solo solicitor AMA. I think that's addressed in there.

2. How do you differentiate your practice from notaries? Do you feel like you compete against notaries for some of your work?

I'm in Ontario, which has an extremely different legal regime than Quebec. When it comes to Wills & Estates, there is no Ontario equivalent of a Quebec Notary (i.e., only lawyers are permitted to draft Wills, give legal advice to Executors [liquidators], etc.)

3. How much of your practice do you spend planning and creating trusts?

The vast majority of trusts I draft are testamentary. Inter vivos trusts are comparatively rare for me since I have no UHNW clients for whom this would be useful or desirable and the tax reforms brought in by the current government greatly reduced the accessibility of inter vivos trust planning for average or HNW clients. In terms of numbers, YTD Estate Planning constitutes 19.78% of my billings, which is consistent with my numbers when I was employed at a firm.

4. What does a typical week/month look like for you?

These days, it's become somewhat chaotic (which is true for a lot of firms). But, I typically spend my mornings answering emails and reviewing and amending documents. Afternoons are for meetings with clients, which is really what I get paid to do. I spend at least half my time, though, managing the business (which is generally many small tasks that all add up - dealing with suppliers, payroll, etc., reviewing financials and making targets, law society compliance, etc.)

5. What type of person is your typical client?

Most are comfortably middle class with at least some assets to their names. They're usually homeowners, unless they're very elderly in which case they've sold their property and now have a cash account and a bunch of GICs.

I have a few professionals and HNW clients as well. There's also a growing group of clients that used to be poor, and still don't have much money, but now find themselves land rich and want to know what to do about it.

 

11 hours ago, Vadoet said:

Another question occurred to me:

6. What percentage of your clients are repeat business? How often do you do work for them?

The metric that's important isn't how many clients are repeat business so much as it is how many clients generate business one way or another (either through referrals to family members, business associates, or, yes, repeat business with the same client). Unfortunately, this is a metric that I don't track and can only get a general sense of. However, I would say that, while 2021 has been the first year that I have been observing some meaningful increase in this kind of business generation, the majority of new files are coming from outside the firm. Certainly, the most valuable files are externally sourced at this time (typically, referrals from other lawyers).

 

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Vadoet
  • Law Student

Thanks for answering my questions, Mountebank.

I've been thinking about what notaries are able to do in BC (where I'd like to practice), and it seems they are limited to only three types of wills. So, my understanding is a lawyer can do the work of a notary, but the notary can only do a bit of what a lawyer can do. (Society of Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448)

A few more questions, if you have the time:

Do you feel like you have variety in your day? Or do you find yourself completing the same/similar types of tasks and your days have become a little rote, despite being chaotic?

How much time do you spend keeping up to date on tax law?

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Mountebank
  • Lawyer
6 hours ago, Vadoet said:

Thanks for answering my questions, Mountebank.

I've been thinking about what notaries are able to do in BC (where I'd like to practice), and it seems they are limited to only three types of wills. So, my understanding is a lawyer can do the work of a notary, but the notary can only do a bit of what a lawyer can do. (Society of Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448)

A few more questions, if you have the time:

Do you feel like you have variety in your day? Or do you find yourself completing the same/similar types of tasks and your days have become a little rote, despite being chaotic?

How much time do you spend keeping up to date on tax law?

Interesting. I've never heard of that in the context of BC.

I don't find things getting rote. I actually like when things are routine because you end up making more money per file. By way of example, my hourly rate is $200, but for standard mirror Wills and POAs for a couple, I charge $900. If everything is routine, I'll spend about 2.5 hours from start to finish - sometimes more, but also sometimes less. When you're working for yourself, the primary source of satisfaction is billing out files and I personally find it very rewarding when I bill out three Will signings in a day. Yes, I say basically the same things during all three of those meetings. But that's probably an average of $2,500 (assuming around two couples and one individual) for a total of 8 hours of very easy work. Now, mind you, the work is easy because I'm very strong in this area and am comfortable navigating the pitfalls and major sources of liability and I've developed an efficient system that relies on office procedures, staff support, and tech to produce a high quality product with minimal input. So it's not for everyone, but it works for me.

The other thing about Wills and Estates is that you get involved in your clients' personal stories and you meet a lot of clients. So, even though though law is the same, the facts are always different and I personally find every client is an interesting conversation because nobody holds back. I'm not a therapist, but for a lot of clients, if I say very little, they'll unburden themselves and share with me their fears, regrets, joys, and aspirations. Things they wouldn't even say to their own children but that they'll say to me because I asked and they know it's all privileged. By the end, they feel lighter and they frequently comment that the experience was way easier than they thought it would be. I direct the conversation so we don't get lost in the weeds, but I let them talk if they want to. It doesn't take much to say to a client, "that must be very difficult not to have seen your daughter for so long," or, "I bet you're very happy to be a grandma" but it makes them happy that someone's listening to them and that's rewarding too.

I could write a book about all the rewarding interactions I've had with clients and a post-it note of the negative ones. This is an area of law in which most of the people you deal with are pleasant people who are grateful for your help. It's mainly only the litigation side that you run into jerkoffs, but you just have to learn how to filter those out at the front end and I've learned a few lessons about the need to fire those clients from time to time.

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Vadoet
  • Law Student
On 11/26/2021 at 5:06 AM, Mountebank said:

The other thing about Wills and Estates is that you get involved in your clients' personal stories and you meet a lot of clients. So, even though though law is the same, the facts are always different and I personally find every client is an interesting conversation because nobody holds back. I'm not a therapist, but for a lot of clients, if I say very little, they'll unburden themselves and share with me their fears, regrets, joys, and aspirations. Things they wouldn't even say to their own children but that they'll say to me because I asked and they know it's all privileged. By the end, they feel lighter and they frequently comment that the experience was way easier than they thought it would be. I direct the conversation so we don't get lost in the weeds, but I let them talk if they want to. It doesn't take much to say to a client, "that must be very difficult not to have seen your daughter for so long," or, "I bet you're very happy to be a grandma" but it makes them happy that someone's listening to them and that's rewarding too.

Thanks for articulating this. For me, this is one of the most attractive things about Wills and Estates. I want people to feel good after they've left my office, even "lighter", as you mention.

Do you spend some of your time thinking of ways to become more efficient so that you can continue to produce a high quality product with even more minimal input?

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Mountebank
  • Lawyer
7 hours ago, Vadoet said:

Do you spend some of your time thinking of ways to become more efficient so that you can continue to produce a high quality product with even more minimal input?

Of course. Trying to make more money by doing the same or less work is the business of self-employment.

There are a lot of different ways to achieve this, some of which are less ingenious than others. The most straightforward, conceptually, is to raise your fees, which I'll be doing in the New Year. The concept is simple but the work is choosing a market and developing a practice that will support the increase without diminishing returns.

By way of example, based on current demand, I believe I can institute a $20 increase to my hourly rate without affecting incoming work. This would affect about 60% of my billings (I have more hourly work now than I used to). That doesn't sound like a lot, but it represents a total increase of 6% to annual revenues. That's a huge increase for basically no input. Being able to raise your fees whenever you think you ought to is one of the principal benefits of developing a good network of referral sources.

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Vadoet
  • Law Student

The business side of self-employment seems like a fun addition to practicing law. Thanks again for your time and knowledge, Mountebank.

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MOL
  • Lawyer

I was going to say that $200/hr struck me as a bit low. I appreciate you're not in Toronto or a larger centre but still.

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Mountebank
  • Lawyer
45 minutes ago, MOL said:

I was going to say that $200/hr struck me as a bit low. I appreciate you're not in Toronto or a larger centre but still.

Yeah, it is. I guess I have a bit of a guilt thing I have to work through about that. $200/hour seems like an awful lot to me, but really it's not much more than hiring a plumber.

I've had some discussions with other lawyers outside of my area, but still not in Toronto, and they've all offered the same critique that I need to place more value on my time. I've been making concerted efforts to do this more as time goes on (i.e. no fee reductions, no free consults, and basically no non-billable file-related time at all - for example, in the past, if a client emailed me about scheduling an appointment, I wouldn't have billed them for that. Now, I docket for administrative work which has encouraged clients to go through my assistant more for that stuff).

I think the correct rate for me in my area would be closer to $235 or so, but, I already raised my rate by $20 for 2021 (yes, my rate was $180/hour last year), so these are some pretty steep increases proportionately over a relatively small period of time. This means that, starting next month, I'll have some clients paying $40 more per hour than when they hired me, which is quite an adjustment I want to be mindful of.

I think the other side of this is that my work has been increasingly shifting toward hourly billables, whereas when I started, it was more flat rate. So, I think I kind of neglected my hourly rate a bit back when it didn't bear any relation to the majority of my billings.

Edit: Btw, I'm a little worried this thread risks turning into another Solo Solicitor AMA. I'd be grateful for any other Wills & Estates lawyers to chime in and shut me up a bit.

Edited by Mountebank
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MOL
  • Lawyer

I've done a bit of estates litigation and enjoyed it. And to your point, it can be lucrative; no one fights like family.

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Mountebank
  • Lawyer
1 minute ago, MOL said:

I've done a bit of estates litigation and enjoyed it. And to your point, it can be lucrative; no one fights like family.

Why'd you enjoy it? I find it a little tiring sometimes.

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MOL
  • Lawyer

I think part of it was just that it was a completely different area of law so it was new and a bit of a challenge. I was also acting against an executor who had basically looted an estate and I was putting the boots to him; it's always fun to be putting the boots in when you are on the side of the angels.

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Mountebank
  • Lawyer
2 minutes ago, MOL said:

I think part of it was just that it was a completely different area of law so it was new and a bit of a challenge. I was also acting against an executor who had basically looted an estate and I was putting the boots to him; it's always fun to be putting the boots in when you are on the side of the angels.

My whole thing now is to only act when I'm sure I'm on the right side of things. I can't carry files if I don't like the clients or think they're right to be upset with the situation. One of my clients yelled at me on the phone last month and I fired him during the call. Direct deposited the balance of his retainer and prepared final letter same day. That shit just takes too much out of you to put up with, especially in this market.

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MOL
  • Lawyer

I also have a firm no asshole rule. It takes time to have the strength to enforce it because at first you are always worried about money.

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