Estate planning lawyers can become specialists: New exam lets Indiana attorneys become certified

Attorney Jeff Hawkins has focused his law practice on estate planning and administration law for 14 years.

He considers himself experienced but is not yet ready to declare himself a “specialist” or “certified” estate-planning attorney.

That happens in November, and the designation depends on results of an exam.

The Indiana State Bar Association has recently adopted a plan to make estate planning and administration a specialty status of law in Indiana, joining four other focuses that have donned the stature – bankruptcy, trial advocacy, elder law, and family law.

Starting in November, attorneys will be able to take an exam to be certified in the estate-planning specialty. The state’s firstever certification exam will be given Nov. 15.

This certification is not required for attorneys to practice estate planning and administration law, but it is one option they have to set themselves apart.

“This is a major practice of law and is an opportunity for attorneys to hold themselves out as having experience in this area,” said Marc Hetzner, a partner at Krieg DeVault who co-chairs the ISBA’s Estate Planning and Administration Specialty Certification Board. “It’s also an opportunity for citizens to better identify attorneys who are well-versed in this area.”

The specialty status comes at a time when many states across the country are making similar distinctions in law, drafting guidelines for attorneys to become certified in specific areas.

Attorneys who complete the demanding certification process successfully are able to market themselves to the public as certified specialists, which state law does not allow unless certification is achieved.

Hawkins and Evansville attorney Brian Carroll spearheaded the Indiana effort allowing attorneys to become specialized estate planners with an actual certification.

The possibility has been tossed around for years, but it started taking shape a couple years ago and came to a head last year, Hawkins said.

A proposal was sent to the Indiana Supreme Court late last year. Fifteen versions later, the ISBA adopted a plan in July to make estate planning a specialty and oversee the certification process.

One of the most difficult aspects of creating the plan was finding a place to start, Hawkins said. They had trouble at first finding states with comparable systems they could use.

“Indiana does not have a unified bar; we have a voluntary one and the licensed bar is separate,” he said. “So it was tough finding a certification system that would lend itself well to Indiana’s specialization rule. We inquired all across the country, but most were relatively guarded about how the systems work and how the exams are prepared.”

Eventually, they decided on Texas and used that state as a template for Indiana’s system, breaking it down section by section, line by line, and adapting to our state’s practice.

Items that were most similar included expectations of expertise in various subject matters of estate planning, applicable probate code, and federal taxation regulations, Hawkins said. They had to include wording about the inheritance tax component for Indiana.

“Most states have the same issues, so we just carry those over to ours,” he said. “The real customization is how they’re licensed versus in Texas, and the appointment of a governing body.”

In Indiana, a 13-member board has been created to oversee the process, tweak the rules as needed, and handle any disciplinary or appeal procedures as needed.

Here’s a snapshot of what it takes to apply for certification under the new plan.

To take the exam, certified applicants must have practiced law for at least seven years on a full-time basis. That includes practicing in Indiana at least three days a week for the three years preceding the exam.

Receiving credit for Continuing Legal Education is also part of the application process, according to the rules. Applicants must complete 45 hours of CLE in estate planning and administration within the three years through Dec. 31 of the year of application. They then must demonstrate that education by attending programs, teaching courses or seminars, or serving on panels or workshops about the specialty.

A $350 fee is required for each certification application submitted. The money is not refundable if the application is rejected or withdrawn.

Attorneys are certified for five years and can elect for recertification at that point. The cost to get recertified is $250.

The exam itself lasts eight hours, with at least a third consisting of tax-related items such as elections, income taxation of estates, trusts and beneficiaries, and powers of appointment, marital deductions, and gifts by or from descendants. The exam costs $200.

Once certified, an attorney must also pay annual dues of $75, though a payment time has not been established.

Sitting on the specialty certification board, Hetzner said he expects that some attorneys might forego the process, but said he doesn’t think a specialty status creates any special or elite class of attorneys.

“There are many who are every bit as capable as those who [won’t be] certified,” he said. “This is just one more standard to help clients navigate the system.”

So far, the ISBA has heard positive feedback on the new standards and upcoming exam, said legislative counsel Paje Felts, who is the main contact person on the topic.

“There’s a lot of uniqueness, and this has been done by some of the top attorneys in the field,” she said. “We think they’ll see an award-quality, well thoughtout product.”

Hawkins also described feedback as mostly positive, but he has also heard comments from attorneys about the standards being too stringent or too lax, whether experience requirements are appropriate, and how this is perceived by larger firms that might have more resources than smaller firms to specialize in the area.

“I’ve taken this as a valuable incentive to improve the practice of law in estate planning,” he said. “At the same time, we can recognize people for achieving that expertise level.”