The do-it-yourself, or DIY, mentality is a common concept for people to save time, money and resources. More and more people know exactly what they want and would rather do it themselves instead of paying an outside contractor to try to get it as close to their vision as possible.
Is the same true for estate plans? Is a DIY option one’s best bet?
Though DIY legal service providers offer lower rates and faster turnaround times than a contracted attorney, some have been sued in a couple of states for violating unauthorized-practice-of-law statutes.
The truth is, DIY-ing one’s estate plan can lull clients into a false sense of security. Consequences for an improperly drafted estate plan could take a long time to remedy.
Without the proper legal background, drafting your own plan may result in financial and emotional consequences. Mistakes in drafting can profoundly alter familial relationships, causing confusion, disappointment and, at its worst, hostile litigation.
In one matter, a New Jersey resident opted to purchase a will form kit and carefully handwrote his intended dispositions in the form document. Believing it was complete, he committed suicide, but had failed to have the document properly witnessed. This oversight cost his family tens of thousands of dollars in legal fees to interpret and give effect to his will.
If you create a will or trust on your own, it’s likely that no one other than the testator would be able to explain your intentions. Those who draft their own documents will run the risk of using words, terms and descriptors that could fail to make effective dispositions. Consequently, failure to use the words of “testamentary intention” could void the will, and the use of precatory language could render dispositions unenforceable.
What, then, is the role of an estate planning lawyer, and why should you retain one in matters such as these?
An estate planning lawyer provides more than technical expertise. Having been trained in this field, an experienced attorney can also serve as a counselor to the family as they make their intimate decisions about the future and their acquired assets. An estate planning attorney would have expertise gleaned from having discussed issues with thousands of clients and may be able to provide a different perspective and advise on unique situations.
Attorneys are also retained to help the clients understand the various roles of a trustee or guardian and provide real-life advice. A part of his role is to ensure the client’s intentions and goals are properly ascertained, expressed and captured in the documents.
Retaining an attorney for your estate plan also bolsters the validity of the will. In the event of a conflict, a lawyer can explain your intentions to a judge who would look into the conversations you had while alive. For example, in New York, the current law creates a presumption of validity if the will is executed under the supervision of an attorney.
An attorney can provide guidance on realizing potential tax savings. Tax guidance requires a detailed understanding of numerous options that only a human can provide.
Legal services do not guide you on funding your trust, and ensuring that your assets are properly titled to allow a seamless transition to your beneficiaries.
What should I look for when choosing an estate planning attorney?
There are a few guidelines to keep in mind through this process. The attorney should specialize in estate planning, devoting their time to this area of law. An attorney that purports to specialize in estate planning but also dabbles in real estate and business law may not have the requisite experience to understand the nuances of estate planning and devise a customized estate plan for your needs.
Start with family and friends to obtain referrals. Check with your state bar website to ensure the attorney is licensed and in good standing. Additionally, check the law firm’s website and social media accounts for information on estate planning services and updates on changes in estate planning laws. Firms that regularly update their website and maintain active social media accounts are likely actively engaged with their clients and value customer service.
What documents do I need and how should I prepare for an estate planning meeting?
It’s a good idea to start with an inventory of your assets to determine the size of your estate for tax purposes, and also to help you think about how you would like to dispose of those assets. This would be a good time to prepare a list of all bank accounts, retirement accounts, life insurance policies and securities and obtain grant deeds to your real properties. After preparing an inventory of your assets, you can begin thinking about how you would like your assets to be distributed upon your passing.
Next, ask yourself who you would trust to handle your finances and administer your trust upon your passing. If you have minor children, you will also want to determine who their guardians would be in the event both you and your spouse pass prior to their turning 18.
These steps make the estate planning process appear less daunting. Many clients are surprised to find that creating their estate plan is easier and less time-consuming than they thought.
Legal automation of your estate plan may sound appealing on many levels. However, should you proceed with this route, do proceed with caution. Specific life events can alter decisions and choices that could be made and put in effect into effect in an estate plan. While you might reap financial savings in the short-term, retaining an experienced attorney for matters such as this will be beneficial for peace of mind over your family’s future.