On a particularly warm June day in the spring of 1948, a Canadian farmer named Cecil Harris headed out the door of his farmhouse to get an early start working his fields. He told his wife and kids that he expected the day to be a long one… she wouldn’t see him again until after 10 p.m.[xyz_feat_school] [xyz_school_button]
Only about an hour after leaving the house, Harris was working alone behind his tractor when it was accidentally shifted into reverse, pinning him against another piece of machinery out in the fields.
It must have been a long day in the hot sun, and Harris lay there stoically with his left leg pinned until his wife came looking for him at around 10:30 p.m. She freed him and got him to the hospital.
Unfortunately, Cecil Harris passed away later that night.
It wasn’t until several days later that neighbors, helping to clear up the accident scene, stumbled across his last will and testament:
“In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”
The words were scratched shakily into the paint of the tractor’s rear fender—the only permanent ledger within reach during those long hours as he lay trapped.
The fender was duly removed from the tractor, entered into evidence at the probate hearing at Kerrobert Courthouse, and accepted as a valid holographic will. Harris’ final wishes were honored legally.
Legal professionals don’t recommend waiting until those terrible last moments before creating a will and paralegals who specialize in estate planning do their best to help clients avoid conveying their last wishes under such macabre circumstances. Still, it is also in the purview of estate planning paralegals to research and work within the bounds of the law to ensure that the last wishes of dying clients are recognized even in strange and unusual circumstances.
Estate Planning Paralegals Guide Clients Through Trying Times
The legal process around death and dying is a sensitive area that many people prefer to avoid, but failure to do so can spark massive legal battles and leave loved ones in the lurch after the decedent has long since passed. Jimi Hendrix died without a will in 1970 and the battle over his estate stretched on for more than 30 years.
Probate is the process of unwinding and resolving outstanding financial commitments and dispersing property to loved ones after someone passes away.
Without strong knowledge of relevant laws and processes, and without a binding will in place, probate can be a fresh nightmare in the wake of grief when a family member dies. Paralegals can step in both before and after a passing to help make the probate process go as smooth as possible.
To help attorneys prepare wills, paralegals may:
- Secure documents related to the client’s estate
- Assist in valuing the assets in the estate
- Drafting estate documents for the attorney’s review (wills, powers of attorney, healthcare directives, and living wills)
- Prepare documents and assist with creating and transferring assets into trusts to ease the probate process
During probate proceedings, paralegals assist attorneys by:
- Preparing and filing probate documents in the administration of an estate (petitions, motions, testamentary letters, inventories, accountings, and notices)
- Filing life insurance claims and other death benefits
- Contacting beneficiaries and next of kin regarding admission of the will and other probate hearings
- Administering estate accounts and assisting with the liquidation and transfer of property
- Preparing and filing the decedent’s final income and tax returns
- Participating in the administration of guardianships and trusts
- Assisting with name changes and adoption proceedings
Paralegals in estate planning and probate law research the law and local court rules to better guide the attorney when making estate decisions. Depending on the jurisdiction, paralegals are also often allowed to meet with magistrates and other officials and present routine filings and accountings.
Beyond Wills and Testaments: Living Wills and Trusts
It is hard enough deciding how to distribute all your worldly belongings after you have departed this mortal coil, but today the greater challenges lie between life and death.
Modern medical technology has advanced to the point where the timing of a death sometimes becomes a matter of choice. The question of what is to be done when a person becomes incapable of making further decisions on their own behalf while being kept alive by medical technology has become central to end-of-life planning.
As you might expect, there are many legal implications to this process and the concept of recording legally-binding advance healthcare directives (commonly called living wills) in these circumstances has become a matter for lawyers and paralegals. The documents attempt to foresee medical issues resulting in incapacitation and allow the client’s wishes for the appropriate degree of medical care to be respected.
Unlike normal wills, living wills have only been common in the United States since the early 1990s, and legal and medical doctrine and technology both continue to evolve. In 2004, the Hasting Center published a strong condemnation of living wills, citing, among other issues, poor understanding by clients of the use of the documents and the procedures they described.
This unfortunate situation is one that estate paralegals can help clients avoid, by explaining clearly and competently the implications of each aspect of living wills or durable powers of attorney and objectively discussing the alternatives.
Specializing in Estate Law as a Paralegal
While paralegal educational programs include an introduction to estate planning and probate, advanced study in this area of law is often advantageous for those paralegals seeking to specialize their career.
For example, the American Bar Association’s Section of Real Property, Trust and Estate Law offers an e-learning training service for new lawyers and paralegals in the areas of trust and estate law. Paralegals in the ABA’s program learn about substantive legal and ethical issues and best practices from leading industry professionals, which includes in-depth knowledge and hands-on experience in trust and estate law.
For more formal credentials, three major paralegal certification agencies each offer various advanced specialty certificates focusing on or related to estate law. These certifications are available to currently practicing paralegals willing to put in extra time and money into the courses.
From NALA, the National Association of Legal Assistants, an advanced certification in estate planning covers the topic in-depth. NALS, the association for legal professionals, has certification programs for estate planning and probate as well as elder law generally, a field which has considerable overlap with estate planning.
And the National Federation of Paralegal Associations sponsors an advanced specialty certification in Elder Law from the Advanced Paralegal Institute.
Estate Paralegals Give Cold Legal Counsel Warmth and Substance
Working in estate planning requires a deft touch emotionally and professionally. Sitting in a room with someone and discussing their impending death, or worse, the recent death of a loved one, is a skill that no school can teach but is absolutely vital to success. Paralegals working in estate planning and probate matters have to know the law frontward and backward, but, more importantly, be able to convey it gently and appropriately to people suffering from emotional trauma.