The growing demand for access to quality estate planning has put a spotlight on the question of whether the supply will be able to keep pace. With the potential sunset of the increased estate tax exemption approaching at the end of 2025, wealthy individuals (old and young) are particularly focused on efficient and effective planning. Perhaps more monumentally, Baby Boomers are retiring and beginning to face their own mortality, and with that, the greatest ever transfer of wealth is underway. All signs point to the next few years as a time when estate planners will be kept well occupied and well compensated. The upward trend in demand is great news for the field, but lack of supply is a concern, especially for those who wish to retire and transition their practices: As we all set out our priorities, we must not only plan for our clients’ futures but also for the future of our profession.
Low Supply Nozzle
Just because trusts and estates attorneys probate estates doesn’t mean they won’t one day be probate eligible themselves. Contemporaneously with Baby Boomers generally leaving the workforce and passing away, aging trusts and estates attorneys are also leaving the practice—one way or the other. This attrition isn’t only reducing the supply of experienced attorneys but also reducing the number of qualified teachers and mentors to ready future estate planners to step into their shoes.
Further, despite the strong demand for estate planners, law schools and bar examiners aren’t responding. Just as older attorneys are aging out of the practice, older professors are also retiring at many institutions without clear replacements in place. Even more concerning, the National Conference of Bar Examiners recently adopted the NextGen bar exam and didn’t include trusts and estates law among the foundational concepts and principles on which new attorneys will be tested. If the legal profession is to serve the general population and the bar exam is meant to ensure that lawyers possess the minimum knowledge to do so, how is estate planning not a foundational topic? After all, the fact that we’re all mortal is the one thing we undoubtedly have in common. It should be concerning to all estate planners that the field is so undervalued and underrepresented.
Pressure on Existing Supply
The rising demand for competent trusts and estates attorneys isn’t limited to the field itself. Increased complexity in trust, estate and tax law means it’s not only clients who need qualified counsel to help them navigate these ever-changing rules but also other client advisors seeking to add this sort of expertise to their teams. Essential advisors and service providers have increased their offerings to clients and kept abreast of potential opportunities and pitfalls by taking attorneys out of the practice of law and into important advisory roles. Accounting firms, financial institutions, trust companies and family offices are providing meaningful and well-compensated opportunities for estate-planning attorneys to use their skillsets. These other sectors not only offer different employment opportunities but also, with the benefit of the influence of other industries, often provide environments that are perceived as more equitable and inclusive than many law firms. The concept of potentially offering attorneys more time for both professional and personal fulfillment can often be misunderstood if not outright maligned by law firms and considered comparatively elusive within the practice of law.
Expanding the Field
This column isn’t meant to tell the story of Chicken Little; rather, it’s intended to show just how little needs to be done by each of us to ensure a vibrant and constant stream of talent coming into a field for which there’s corresponding demand. If practitioners broadly, consciously and strategically invest some time and energy into the future of the field, it will have a tremendous impact. It’s self-evident that if the efforts of any one practitioner play a part in recruiting two or more attorneys into the field over the course of their career, then that individual has helped expand the field.
The timing and sequencing of these efforts matters as well. We can’t wait passively for mid-level associates to come to our doors already trained and ready to work; rather, engagement must begin in law school. Across the entire legal industry, the ongoing trend has been towards specialization occurring as early as after a law student’s first year when interviewing for summer associate positions. Expecting enough attorneys to find our field through self-selection alone won’t reliably produce a sufficient yield due to a lack of exposure. There are a number of factors limiting law students’ exposure to the field, chiefly two to highlight here. First, the decision to remove trusts and estates from the bar examination sends an implicit (and incorrect) message to law students and law school administrators that this area of expertise isn’t important. Second, unless a law school has a sufficient offering of courses to expose students to trusts and estates, together with a bench of professors qualified to instruct and inspire students on the topic area, then there are too many other areas of the law that have compelling courses and inspiring faculty directing students to specialize elsewhere, as well as the recruitment machines of large firms with big departments in those areas ready to draw in many of the best and brightest.
Practicing attorneys have the opportunity to reverse these trends by engaging with the system from the ground up, including by considering their own educational and formative experiences. For example, what constitutes “sufficient course offerings” bears reflection and revisiting. It doesn’t simply mean offering the same courses previously taught plus maybe some more, but a fresh look at all courses to ensure they’re providing students the exposure—and the experience—that’s relevant to the practice today. Yes, trusts and estates should be a doctrinal class that law students should take to garner basic knowledge in an area that they’ll inevitably encounter, but what they’re being taught often bears little relationship to the field in practice. As practitioners know, top-notch estate planning rarely sees the light of day—it works quietly and doesn’t draw attention. When there are carefully crafted documents, wisely selected fiduciaries and beneficiaries educated on stewardship of wealth, there’s no case to report or gold star from a judge for a job well done. As a result, casebooks can too often be an anthology of poor estate planning or situations exacerbated by bad counsel. If those casebooks are used by instructors who are neither academics who focus their scholarly pursuits primarily in the field nor practitioners in the field who can explain what could (and should) have been done better in practice, the course can push students away from the field as a hot mess rather than pull them in to a field rewarded with long-term personal client relationships and the fulfillment that comes from guiding a family through life and loss.
My own vocation to specialize in the field came from clerking in a probate court. Like the casebooks, the docket was filled with estate plans gone wrong, and I got a front row seat to some subpar lawyering. But I also got to see an incredible judge, court staff and talented attorneys who helped fix clients’ problems during a difficult time in their lives. That’s when I knew what I wanted to do for a living. For those who went to law school, reflect on your own introductory trusts and estates course. Did it inspire you to go into the field? If so, shouldn’t you ensure that your local law school and/or alma mater is still providing that course to launch future estate-planning careers? Or if you went into the field despite that class, do you wish you had that inspirational class, and can you play a part in making that happen?
In addition to ensuring there are educational and enticing introductory trusts and estates courses to help law students onto the path into the profession, law schools should provide additional options to reinforce that choice and prepare the law student to be an estate-planning lawyer. There’s no prevailing pattern of offerings among law schools. Some have robust programming, and others very minimal. There’s also some room to debate what programming is necessary. I would argue estate and gift tax remains an essential course, even with increased exemptions; though exemptions are at all-time highs and the payment of tax liability will be made by only the wealthiest at this time, to justify not teaching the class because it applies only to a small number of individuals based on the law as it stands at this moment without regard of what was and what may be, would be the death knell of large swaths of course catalogs and fundamental underlying skillsets. Additionally, elder law, financial planning and practicums focused on drafting would provide law students with skills for which they could easily find demand in the workforce.1 Finally, much of law school training focuses on black letter law, and as such, law students may underestimate the importance of being a sound and sympathetic counselor to clients;2 this shortcoming could also be addressed with strategic coursework.
Continuing After Commencement
Law school should only be the start of a practitioner’s education as a lawyer. There are firms that have both the resources to offer training to attorneys new to the field and leadership that expends the resources to make training part of the firm’s business plan and culture. However, many attorneys are practicing in settings where the employer alone can’t or won’t provide essential training. In the past few years, professional organizations have developed some programs to foster the development of attorneys showing future leadership potential in the field. Two excellent models are the American Bar Association’s Section of Real Property, Trust and Estate Law (RPTE) Fellows Program and the American College of Trust and Estate Counsel (ACTEC) Fellows Institutes. These investments of time and resources into the next generation are already paying dividends. Still more needs to be done to help train those too junior to participate as well as those transitioning into the field from other practice areas, and efforts underway such as the RPTE “Skills Training” programming are encouraging. Engagement and volunteerism in programs such as this, as well as in local bar associations and other professional organizations to provide such training is one way for practitioners to play a part in helping to raise the quality of the practice and retain practitioners in the field.
Invest in the Future
Despite the demands of client work, estate planners must also keep an eye on the future. Hopefully this article causes you to reflect on what efforts you’ve taken to help train and mentor the next generation to take up your mantle one day. I also hope it causes you to identify some activity you can do that you haven’t done yet. That effort could be one that will place great demands on you for little financial compensation, but nevertheless be immeasurably rewarding, such as teaching a law school course. It can also be something very manageable, such as writing a helpful fundamentals article, creating a CLE course on a topic appropriate for junior attorneys or simply striking up a mentoring relationship. If these efforts result in not only well-trained attorneys but also attorneys who understand the value and benefit of investing in the next generation, then the investment of your time will produce compounded returns to the profession.
— The author would like to thank his colleagues, Marissa Dungey and Lisa G. Page, for their thoughtful comments and contributions to this article.
Endnotes
1. For an excellent summary of some efforts on expanding and evaluating curriculum, see Jeffrey A. Cooper, “Rethinking the Estate Planning Curriculum,” ACTEC Law Journal, Vol. 46, No. 1, Article 7 (2020).
2. See Karen J. Sneddon, “Speaking for the Dead: Voice in Last Wills and Testaments,” 85 St. John’s L. Rev. 683, 702-708 (2011) (commenting on the important function of lawyers as counselors to clients and whether traditional estate-planning courses provide sufficient training as advisors).