We live in a time when doing it yourself is extremely popular. Entire television channels have cropped up around it. My wife comes up with all sorts of ideas from something called Pinterest. I have personally gone to YouTube for tutorials on clothes dryer and car repairs (I even sort of did them right!).
And sometimes people ask me if they really need a lawyer to do their estate planning. It’s never been easier to do it on the cheap, between online document creators, software packages, and legal forms packets at the office supply store. In fact, I even found a book of legal forms at the library a while back–a completely free solution!
But the question kind of gives away the answer, doesn’t it? After all, if the person asking knew the online forms provider or the library book would do a good job, there’d be no need to ask the question. They would have used the solution and everything would be all nice and wrapped up. So, I want to go over some of the risks involved, and figure out when and how a lawyer can help.
There are no “do-overs”
When you need an estate planning document, you’re generally stuck with what you have. Died without a will or trust? The intestacy laws apply. No durable power of attorney when you become disabled? It’s probably guardianship, conservatorship, or both. Forgot to make a beneficiary designation on a retirement plan before you die? It goes through probate.
And few of us know when we’re going to need those documents. Sometimes, I have clients that come to me after getting bad news from the doctor. Even in those cases, it’s not as if they’ve been stamped with an expiration date. We all have time, and it’s not certain–for the most part–when our time will run out. Having the documents before you need them is important, and it offers the peace of mind of knowing that if your time does run out, everything’s taken care of.
Issues you might not see
Part of what lawyers do is looking for issues that can lead to legal problems. We’re trained to do it in law school; most of our exams are “here’s a scenario, find the possible legal issues” exercises. In previous articles, for instance, I’ve discussed how your beneficiaries might benefit from special needs trusts or other types of trust planning. Perhaps you may need long-term care and are wondering how to pay for it. Perhaps you have a high-conflict family and want to avoid family fights as best you can. In some cases, you may not be aware that there’s a problem at all. Or, if you see the problem, you might not know quite how to address it. That, as you can probably imagine, is where a lawyer can help.
Answering your questions
I have had some long meetings with estate planning clients. That’s not a problem; estate planning is important, and you ought to understand what it is you’re creating. And if you have questions, you should get those answers! The problem is, the forms packet won’t answer your questions. Some online forms providers have realized this, and offer some attorney consultation, but 1) the amount of help you can get is probably limited, and 2) you don’t know who the attorney is. Going to a local lawyer (even if it isn’t me) you can develop a relationship where the lawyer knows you and your situation, and you can develop comfort and rapport with that lawyer. I think there’s some real value there.
Attention to formalities
There are a lot of formalities in the law, and estate planning is certainly no exception. In fact, formalities are critical in the estate planning process. Why? Because, as we talked about earlier, once your documents really take effect, you’re likely to be incapacitated or deceased. So, if there’s some argument about what you wanted to do, you don’t really have the chance to clarify it. Formalities are critical, and you’re on your own with a DIY solution. Making sure things are done properly can be the difference between an effective estate plan and unusable papers.
Want to see an example of this? Check out this case out of Florida, where a woman (using DIY forms) tried to make an adjustment to her estate plan but didn’t have enough witnesses. Result: an expensive family fight and a distribution of her assets that was almost certainly not what she had intended.
Opportunity to update
Once you make an estate plan, you’re not completely done with the estate planning process. As time passes, your life is going to change, your circumstances are going to change, and your estate plan needs to change also. I’ve written on updating your estate plan before, but generally I recommend reviewing the plan after major life changes and roughly every 3-5 years. Additionally, the laws change, and the government can make a plan that made sense a few years ago inadequate to serve your needs today. Having an attorney who knows you, keeps up on the law, and knows the documents can make this process simpler and easier.
An objective view
Estate planning brings up emotional issues: relationships, causes that you care about, and people you care for. Sometimes, when you’re in an emotional situation, it helps to get outside advice. What’s the best way to divide an estate? Should you disinherit a child? Who should take care of your kids? Unbiased, objective counsel can be really valuable in working through and planning for these types of situations.
Enough! What’s the answer, then?
I guess it isn’t too surprising that, unless your situation is very simple and money is really tight, I think going to a lawyer for your estate planning is better than using a form provider.
I can hear it now: “Well, you’re an estate planning lawyer, so obviously you’d say that!”
That’s true, but we just went through a bunch of reasons why a lawyer might be helpful. Also, I don’t mean to suggest that I’m the only lawyer that could help–I’m happy to help, but I’m not the right lawyer for everyone (and no lawyer is).
And that brings me to next week’s topic: how to find the right estate planning attorney for you.