Reason #2 to talk to an Estate Planning Attorney: DIY (or bad notary, legal professional, or attorney-prepared) documents
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Estate planning documents are not (always) a set it and forget it tool, unfortunately. Lots of circumstances can change that require updates or even a complete redo, but let’s talk about when estate planning goes wrong.
Reason #2 to talk to an estate planning attorney: DIY (or bad notary, legal professional, or attorney-prepared) documents.
This is the age of Google. We want things fast, cheap, and easy. We all feel to some degree that we can be our own doctor, lawyer, and contractor these days. This false sense of security is reinforced when nothing goes wrong, but when something does, it can spell disaster.
This isn’t a topic that can be adequately covered in one post, but here are some of the highlights:
DIY/fill-in-the-blank/online Wills and estate planning pitfalls:
1) What you don’t know CAN hurt you (or your loved ones).
People who do not use an experienced estate planning attorney to prepare documents that are SPECIFICALLY CUSTOMIZED to their individual needs (even if using a software that claims to give you access to an attorney), often end up with documents that have glaring oversights. We have seen Wills that completely and unintentionally disinherited a child, Trusts that mistakenly locked up property where no one could legally access it, Powers of Attorney that gave sweeping powers to someone the signer actively distrusted, and so many documents that failed to provide for contingencies, such as beneficiaries passing away out of the expected order. DIY documents often fail to sufficiently protect young, irresponsible, and disabled beneficiaries.
2) Language and execution matters.
DIY documents are far more likely to be unenforceable due to wording that may make sense to the drafter but doesn’t work under the very complicated estate statutes and caselaw. DIY documents are also more likely to be unenforceable because they are not executed with all of the formalities the law requires. It does not matter one bit if the whole world knows what the person intended if it is not in the proper form. A court may have to ignore a person’s wishes under these circumstances.
3) It is wise to have a DIY document reviewed by a competent attorney.
However, you will have to pay for this service because an attorney is not going to provide legal advice on a document they did not prepare for free. In almost all cases where we have reviewed a DIY Will or Trust, we have recommended significant changes, if not a complete rewrite. We warn these clients up front that it will usually be more cost effective just to start from scratch as opposed to paying us to review, then paying us to fix the issues.
Documents prepared by non-attorneys:
1) See above. Non-attorneys are … not attorneys. It does not matter that they worked in a law office. They do not have a law degree and have not practiced law, even if they helped. These individuals often know just enough to be truly dangerous and have produced some very problematic or ineffective estate planning documents. These documents are usually not obviously flawed to the signer or family, but are later discovered to be flawed by an attorney when it is too late to fix them.
2) Practicing law without a license is a crime. Don’t put your and your family’s well-being in the hands of someone who is breaking the law to prepare your documents. Any notary or other non-attorney advertising or offering legal services, whether they are charging or not, has already demonstrated a lack of understanding as to the law because they are subjecting themself to criminal liability, civil liability, and loss of license, if applicable.
Documents prepared by attorneys who don’t know what they are doing:
1) “Can” does not mean “should.” An attorney who does not have experience in estate planning and probate can be just as dangerous as a non-attorney. There are attorneys who have obtained an old form from someone else and are happy to plug in your name for a seemingly low fee. It is the questions they don’t know or care to ask that will likely cause problems later.
2) Having a document prepared, especially by an attorney, can give a false sense of security that nothing else needs to be done. If the attorney cannot walk you through the probate process in detail, or easily explain the difference between a Will and a Trust, these are red flags.
What are the consequences of bad drafting? Complete or partial ineffectiveness of the documents; Documents that sometimes do the opposite of what is intended (this is more common than you would think); Expensive reviews/redos without a refund on initial drafting; Even more expensive probate cases and litigation; Family conflict over what the law says people get versus what the person intended to give; and many more.
You get what you pay for in many cases. Saving a buck up front could cost significantly more money and lots of grief later.
It is recommended to consult with an experienced estate planning attorney every few years or after any major life change or change in preferences to ensure your documents will adequately carry out your wishes.