To UPL, or Not to UPL…
The Unauthorized Practice of Law (UPL) is an unavoidable topic of conversation when it comes to Certified Financial Planners (CFPs) and estate planning lawyers. But does it really matter? Every CFP I know toes the line of giving legal advice versus general education, but they always fall back to their ethical restrictions. That’s what makes their fiduciary duties and performance respectful, impressive, and a bit scary.
Pop quiz. Let’s play “UPL or not UPL”:
A CFP tells an above-threshold client, “GRATs are great estate planning vehicles, but come with considerable individual tax implications.”
Legal advice? No, general education.
Let's change one word. “GRATs are great estate planning vehicles, but would come with considerable individual tax implications.”
What say you?
I say, “…would…” implies you are analyzing an estate planning vehicle option against your client’s specific scenario. That’s not hypothetical. That statement requires applying personal knowledge of a client’s financial landscape. That’s specific legal advice. And if you’re a non-lawyer, it’s unauthorized.
Last one.
What if a client can't decide between their brother, sister, or child as executor and you suggest, “You know, another option could be to go with an independent corporate trust officer. Do you know what trust officers do?”
Tame. Sane. Legal advice.
But if the clients are siblings who are squabbling and the CFP butts in with, “Do you know what corporate trust officers do?” Well, that’s a different category entirely. That’s just good customer service.
The point is, UPL can be hard to understand, identify, or prevent in real world situations and fast moving conversations. Most CFPs understand UPL is not just an ethical thing. It is a legitimate crime that can amount to fines, securities board discipline, and jail time.
UPL fear is misplaced.
As much as it’s discussed in conference seminars, CE courses, and many articles you can find on the web, it might surprise you how rarely it's actually prosecuted in estate planning circles.
There were just over 100,000+ CFPs registered in 2025. Of those, only 64 disciplinary actions were reported by the CFP Board. And not one for UPL related to estate planning. [1] Disciplinary actions are usually related to securities activity, criminal charges related to felonies, or not disclosing conflicts. That said, if you’ve heard of a CFP going down for UPL in connection with estate planning, please find me; I’d be genuinely interesting in learning more.
The fear isn’t really criminal prosecution or reputation damage control. And I doubt it’s ever fear of under-performing. Every CFP I’ve ever met is an over-performer by nature. The real fear is losing clients and watching generational wealth walk across the street. But if you let your client’s estate end up in probate, you’re going to lose generational wealth.
If you haven’t had the displeasure of going through a probate battle, here’s my line: I fought in a foreign war as an enlisted member of the United States military and I've been a divorce lawyer, but the worst version of humanity I’ve witnessed exists in probate court.
Ergo, if your clients have to go through a probate battle after your firm was responsible for coordinating drafting, good luck holding onto that relationship. But if you incorporate a robust estate planning practice, you’re almost guaranteed to keep generations of heirloom wealth under your roof and have them do the heavy lifting for you; which I’ll discuss in the next blog.
If you have questions or need some clarification on any Michigan estate plan, be it your client’s or your own, I’m your guy.
[1]https://www.cfp.net/search?limit=20&pg=1&q=actions%202025
