As Ben Franklin said, “in this world, nothing is certain except death and taxes.”
We need trust and estate lawyers to manage both. But there’s a dearth of up-and-coming practitioners, leading to a critical shortage just when we’re anticipating the largest intergenerational transfer of wealth in history.
In the June 2024 episode of the “Trust Me” podcast of the Trusts & Estates section of the California Lawyers Assn., Josh Yager, Managing Partner of Anodos Advisors in Santa Barbara, CA, warned of a “train wreck” coming with an “unmanageable amount of work.” He cited the following statistics: There are 10 million Baby Boomers in California with approximately $15 trillion in assets which will pass in the next 20 years. But there are only six thousand trusts and estates lawyers in the state, a third of whom were admitted before 1990 and approaching retirement, and the California Bar is not admitting sufficient replacement numbers. Yet, as Yager puts it, this is “the biggest growth industry there is.”
This situation is replicated across the country.
Critical practice area
Regardless of their age, net worth, or socio-economic background, the increasing complexity of American society results in estate planning being an essential tool for most individuals. Changing demographics, longer lifespans, the proliferation of new forms of “family,” the uses of non-traditional reproduction methods, and the development of new forms of property (such as cryptocurrency and other forms of digital assets) all expand the need for proper planning, which requires knowledgeable lawyers to assist in navigating complex rules.
Trust and estate attorneys are particularly important to America’s seniors. There are 55 million older Americans, and soon they will comprise 22% of the population. Baby Boomers and their immediate predecessors, the Silent Generation, will pass a total of $84.4 trillion in assets before 2045. Probate courts already are in desperate need of skilled trust and estate lawyers with more than a million probate or estate cases filed each year, which will continue to skyrocket as Baby Boomers die.
“Missing” generations of lawyers
There is a “missing” generation or two of up-and-coming trusts and estates practitioners for a variety of reasons:
• Lack of mentors
Demographically, trusts and estates practitioners and professors are aging out while potential clients are aging in. Aging trusts and estates attorneys increasingly are leaving the practice either by retirement or death. This attrition reduces not only the supply of experienced attorneys but also the number of qualified teachers and mentors to prepare future estate planners to step into their shoes. These exits also can leave clients in the lurch as estate plans that were put into place by those senior lawyers 20 to 30 years ago may be affected by changes in law and facts over time, and those clients will need to find new lawyers to update their plans or administer estates.
• Deemphasis by law schools
Just as older attorneys are aging out of practice, older professors are retiring without replacements on tap. Unless law schools have sufficient course offerings to expose students to trusts and estates, together with a bench of professors qualified to instruct and inspire students on the topic area, we cannot expect enough attorneys to find the trusts and estates field through self-selection alone to reliably produce a sufficient yield. There are too many other areas of the law that have compelling courses and inspiring faculty directing students to specialize elsewhere, along with the recruitment machines of large firms with big departments in those other areas (and a diminishing emphasis on trusts and estates—see below) poised to attract many of the best and brightest.
• Bar Exam snub
Even more concerning, the National Conference of Bar Examiners recently adopted the NextGen bar exam which doesn’t include trusts and estates law among the subjects on which new attorneys will be tested. This omission sends an implicit—and misleading—message to law students and law school administrators that this area of expertise isn’t important.
• Jettisoning by Biglaw
Over the past 30 years or so, the marketplace saw an ousting of trusts and estates practices as Biglaw focused on premium fee generating practices such as high stakes business litigation and corporate transactions. The trusts and estates practices essentially were small boutiques within the firm, not seen as a revenue-generating engine, but rather offered as a courtesy to corporate clients. In the push to maximize profits, or if a firm experienced tough times, those practitioners were pushed out into smaller, regional firms or boutiques because they weren’t generating returns that matched that of other lawyers.
Consequently, the practice has bifurcated into the few top-level big law and high fee generating trusts and estates practitioners who remain in Biglaw, handling only the super high value, sophisticated estates, OR smaller “mom & pop” firms or solo practitioners which handle lower rate, smaller estates with simpler, more repetitive services. Less populated is the middle ground of mid-range fee practitioners to handle mid-sized, sophisticated plans and disputes.
There is good news and bad news, however. In 2022, the New York Law Journal reported that Biglaw is recognizing the increasing demand for estate planning services and the practice area is starting to return to larger law firms. The bad news is that qualified attorneys are few and far between. In 2021, Insider Magazine reported that trusts and estates attorneys have been working nonstop since the pandemic, are being forced to turn away new clients, and are struggling to hire additional talent to meet the enormous and growing need for services.
Broad career opportunities
Opportunities in trusts and estates law are “evergreen”—constant and growing—and extend beyond traditional law firm practice. With the increased complexity in this area of the law, it’s not only law firm clients who need qualified counsel to help them navigate these ever-changing rules but also other client advisors seeking to add this type of expertise to their teams. Careers in trusts and estates can be found in law firms of all sizes, banks and professional fiduciaries, accounting firms, valuation firms, auction houses, nonprofits, government agencies, and elsewhere. These other sectors not only provide different employment opportunities but, without the pressure of billable hours, may offer attorneys a better work-life balance with more time for both professional and personal fulfillment.
A career in trusts and estates law is an excellent opportunity for new law graduates and junior lawyers who have yet to specialize, or more experienced lawyers with allied practice skills (tax, business/commercial litigation) looking to retool or revitalize their practices. Interested lawyers can research estate planning and administration, probate, or elder law practitioners and reach out directly to them for mentorship or to inquire about job openings. Additional training can be sought through LLM programs, CLEs, and bar association section membership and participation. Their alma maters may have relevant professors to contact, courses they can audit, or related alumni networking events they can attend.
Hiring strategies
For practitioners looking to add junior lawyers, reach out to law schools for On Campus Recruiting (OCI) and student networking opportunities, and post on their job boards for new graduates and alumni contemplating career moves. Offer to speak at on campus or regional alumni programs. Be willing to mentor and train new graduates and lateral candidates. Get active and visible in bar association and other relevant professional activities. Publish and otherwise raise your profile. Of course, you should reach out to your preferred legal recruiters, but realize that they are facing the same dearth of experienced prospects, as well.
In the past few years, professional organizations have developed programs to foster the development of attorneys in this 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. ACTEC also has prepared a letter targeted to Law School Career Services and Deans of accredited law schools across the country urging them to promote estate planning and related courses and career opportunities. Let’s hope these efforts bear fruit as neither death nor taxes are going to disappear any time soon and we need more trusts and estates lawyers NOW.
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Thank you to David Soffer of Soffer Law Group www.sofferlawgroup.com and Terrence Franklin of Sacks Glazier Franklin & Lodise https://www.trustlitigation.la/ for their assistance in researching this post.
