Downs Law Firm, P.C.

creating your own trust or will

Why a Probate Lawyer Sees Problems with Do-It-Yourself Wills

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These documents could save money but can lay estate planning traps.

As a probate lawyer, I often see problems with Do-it-yourself (“DIY”) estate plans. Such wills, whether in office store kits or online,  often create problems for families. Some of these are of the type reported in Next Avenue’s aptly-named article “The Problems With Do-It-Yourself Online Wills.”

The article reports that one Do-it-yourself (“DIY”) estate planning service had three different “packages” that consisted of the same document, just with different names. Those packages were also missing a key estate planning document that the average person would not know to ask about. Even attorneys who do not practice estate planning law often rely on an estate planning attorney for their wills.

While processing cases as the probate attorney, I have worked with numerous cases in recent years where the purported intentions of someone are not carried out because of defective or non-advised decision making, often leaving loved ones to blame one another for being disappointed in not getting what they see as what the deceased person wanted. Is it better to mistakenly think you have done something for those you love or to have not done anything at all?

For those with complex financial and personal lives, a DIY service may not be able to address the estate planning issues. If you have over a certain level of assets, do you want to risk making a costly blunder that could easily be prevented by working with a skilled professional?

Think of it this way: there are some people who can have their taxes done online because they receive simple tax forms from their employer. If there’s a mistake, the IRS sends a letter and they may have to pay a penalty or pay the taxes that were not paid properly. Simple, right?

What is the advantage of doing it yourself? If your will or living trust doesn’t work, you’ll never know.

That’s also the disadvantage. Corrections are often impossible. However, your loved ones will know if you made a significant mistake, and it will be a parting legacy and remembrance.

Good estate planning is all about expressing our wishes clearly and effectively. The documents that are prepared and the process of decisions about our wishes accomplish a number of tasks:

  • Clarify for the probate attorney and court your valid and enforceable intentions,
  • Reduce administrative confusion, and
  • Reduce or eliminate unnecessary fees and delays.

The four documents for a basic “will-based” plan are  (1) a Last Will and Testament, (2) a Durable Property Power of Attorney, (3) a Health Care Power of Attorney, and (4) a Living Will. If you expect to use any of these through a DIY website, expect to use a “fill in the blank” approach. Remember that every state has its own laws governing probate. Are you sure that the forms you are filling out are acceptable in your state?

Other DIY sites have some documents, but only if you purchase a high-end package. Others offer attorney consultations, but some consider an attorney consultation to be a series of questions and answers through an online app with pre-written responses, and not a real attorney.

From the view of a probate lawyer, the problem with DIY wills is that we don’t know what we don’t know. We may know who we would like to receive our assets, but not what our state law requires to make that happen. Case law about estate distribution and probate is not something an average person knows. That’s why it makes more sense to speak with an experienced estate planning attorney. They will be able to create an estate plan based on knowledge and skills that come about only after practicing in this area of law.

Reference: Next Avenue (March 29, 2019) “The Problems With Do-It-Yourself Online Wills.”