Unauthorized Practice Rule 4 - Estate Planning and Settlement
Estate Planning and Settlement.
UPR 4-101. Estate Planning Advice.
- (A) A non-lawyer shall not advise another for compensation, direct or indirect, in any matter involving the application of legal principles to particular facts or purposes or desires, except:
- (1) A non-lawyer may collect information and analyze the facts and assets of a particular estate in relation to its economic or investment needs.
- (2) A non-lawyer may, incident to the sale or transfer of a particular investment asset, give information about the laws affecting the holding or disposition of such asset, such as making projections of possible tax effects arising from a transfer of ownership of a life insurance policy, security or other investment.
- (3) A non-lawyer may specifically recommend dispositive provisions for a will or trust.
UPR 4-102. Holding Out With Regard to Estate Planning.
- (A) Except to the extent estate planning advice is permitted under UPR 4-101, a non-lawyer shall not hold himself out as authorized to furnish another advice or service under circumstances which imply his possession of legal knowledge or skill in the application of any law, federal, state or local, to a specific set of facts for a particular person.
- (B) A non-lawyer shall not be excused from any violation of these Rules by any disclaimer or other statement that his unauthorized advice or conduct should be reviewed by his customer's own lawyer.
UPR 4-103. Preparation of Documents.
- (A) A non-lawyer shall not, with or without compensation, prepare or draft, or cause his own lawyer to prepare or draft, for another, legal instruments of any character, including the filling out of a form for any will or trust, except:
- (1) A non-lawyer may prepare forms of wills or trust of general application.
- (2) A non-lawyer, as an incident to the regular course of conducting his business, may submit to his customer's lawyer specimen language for inclusion in a legal instrument to be prepared by such lawyer, subject to acceptance, modification or rejection by such lawyer.
- (3) A non-lawyer, as an incident to the regular course of conducting his business, may furnish his customer with routine forms or contracts of generally accepted application which do not go beyond the legitimate interest of the non-lawyer and do not involve a selection by the customer as between alternatives with materially different legal results not generally understood in the community. For example, the offering by a savings institution of a joint account with right of survivorship, a simple revocable trust account or a custodial account under the Virginia Uniform Gifts to Minors Act would normally not constitute the unauthorized practice of law.
UPR 4-104. Settlement of Estates.
- (A) A non-lawyer shall not give legal advice with respect to a person's domicile.
- (B) A non-lawyer shall not prepare or draft instruments, or give legal advice, with respect to the disclaimer of all or part of a person's interest in property, or a person's right to renounce all or part of any interest due under the will of such person's spouse.
- (C) A non-lawyer shall not undertake in the settlement of an estate or trust to represent the interest of another before any tribunal, judicial, administrative or executive, otherwise than in the presentation of facts, figures or factual conclusions, except:
- (1) A non-lawyer may offer to the proper clerk of court a will for probate or qualify as a fiduciary in any uncontested proceeding.
- (2) A non-lawyer may prepare and file accountings and confer with the Commissioner of Accounts in any uncontested proceeding.
- (3) With respect to tax matters, as set forth in Unauthorized Practice Rule 5, infra.
Unauthorized Practice Considerations.
UPC 4-1. "Estate planning," as that term is generally used and understood today, refers to the orderly arrangement of an individual's assets so as to provide most effectively for his economic needs while living, and for the personal and economic needs of those he may wish to benefit after his death. Estate planning necessarily involves, among other things, a knowledge and application of principles of the law relating to wills and descents and distribution, trusts and future interests, real and personal property, gifts, and taxation. In addition, effective postmortem estate planning requires an intimate familiarity with probate procedure and practice.
UPC 4-2. The proper planning of an individual's estate is often aided by the services of non-lawyers skilled in insurance, investments, accounting services, and the like. An analysis of the facts and assets of an estate in relation to its economic or investment needs, and the giving of general information as to the laws affecting the disposition of estates without any specific application thereof to a particular situation, other than mathematical computations to support a hypothetical analysis, is not the unauthorized practice of law.
UPC 4-3. The holding out to the public, directly or indirectly, overtly or subtly, by any non-lawyer of his willingness to give advice as to the legal consequences of a particular plan which goes beyond matters incident to the sale or transfer of a particular investment asset, such as a life insurance policy or security, in the regular course of the non-lawyer's business, or his willingness to perform legal services in the field of estate planning, is a holding out to engage in the unauthorized practice of law. A non-lawyer cannot solicit such services and then hire a lawyer to perform them. A non-lawyer consultant or adviser cannot offer the legal services of his own lawyer. Such practices are not purged or purified by an acknowledgment that the consultant or adviser is not authorized to give legal advice, or by any disclaimer or suggestion that such advice should be reviewed by the customer's own lawyer.
UPC 4-4. Activities geared to motivating an individual to give consideration to his estate, and to seek the advice of a lawyer of his own choosing as early as possible, preferably from the outset, with regard to the development of an overall estate plan, are in the public interest. Advice on matters of law with respect to the particular factual situation of the individual concerned, however, is the unauthorized practice of law whenever it goes beyond advice on matters incident to the sale or transfer of a particular investment asset, such as a life insurance policy or security, in the regular course of the non-lawyer's business.
UPC 4-5. The preparation of legal instruments such as wills, codicils and trusts by a non-lawyer for another, with or without compensation, goes beyond the area of permitted advice incident to the regular course of a non-lawyer's business. There is nothing improper, however, in the submission of suggested forms for various types of wills or trusts to lawyers for present or prospective customers of a non-lawyer. Distributing forms of separate administrative or dispositive provisions setting forth the proper name of a fiduciary, a charity or the like is not improper.
UPC 4-6. Selecting or filling out a form of will or trust for another is an exercise in legal judgment. As an aid to a customer's lawyer, a non-lawyer may submit to such lawyer, and only to him, specimen language for technical provisions to be included in his client's will, codicil or trust; but such non-lawyer is not entitled to hold himself out as the responsible draftsman of such provisions.
UPC 4-7. Advice by a non-lawyer as to the use of his "standard form trust," "plain English trust," "mini-trust," or the like constitutes the unauthorized practice of law when the provisions of such instrument go beyond the legitimate interest of the non-lawyer therein, seek to do more than the normal agency or deposit contract, or affect the legal rights of persons not parties to the contract. For example, the furnishing by a non-lawyer to his customer of a power of attorney which extends the authority of the attorney-in-fact to deal on behalf of his principal with all his principal's assets or accounts, whether or not maintained by that particular non-lawyer, goes beyond the area of that non-lawyer's legitimate interest.
UPC 4-8. The settlement of a decedent's estate invariably poses problems of a legal nature. Such settlement may involve the practice of law in such areas, among others, as the offering of writings for probate, the qualification of fiduciaries, the preparation of accountings, and the determination of legal rights and liabilities with respect to the assets of the estate. In administering and settling the affairs of an estate, a fiduciary is not acting primarily for himself; and the drafting of instruments and appearance at probate hearings by a non-lawyer, as contrasted to the preparation and filing of a list of heirs, inventory or accountings, whether in person or through lawyers who are salaried employees, ordinarily constitutes the unauthorized practice of law.
Updated: April 20, 2010