DIY Death Planning: Red Alert On Ready-Made Wills from the Red Light District

A recent Forbes.com article, “The Case Against Do-It-Yourself Wills” points out some of the horrific problems that can arise with “DIY” wills.  They should really be called “Do It Without a Lawyer” wills since rather than doing it themselves, under these methods (form books, software, online preparers) consumers instead pay several hundred dollars to non-lawyers for what essentially amounts to expensive, and possibly dangerous, word processing.

I serve on the panel for one of these companies (even though I cringe when I hear their commercials) and they call me when the customer “needs a lawyer” – but how does a non-lawyer really know when a lawyer is needed in the complex area of estate planning?  How do their customers know to bring up facts important to this determination? Alert-icon-red

The Forbes article includes some great examples of problems with DIY wills—faulty wording (omissions, ambiguity, naming wrong person); faulty execution (resulting in application of intestacy rules); failing to use estate tax exemption; limitations on what interested witnesses can take; failing to plan properly for asset protection; last minute planning with a handwritten note because there is no lawyer involved; and the family conflict and litigation that can result from these errors. 

In addition, the article points out that lawyers can help explain issues unique to the law of your state, guide you in using living trusts, and coordinate the many assets which often do not pass through either will or trust.

However, apparently because the author failed to shop around much and feels she got “ripped off,” she now blames lawyers for overcharging “as if it took them hours.”  She then quotes a supposed legal expert who says his drafting software allows a lawyer to draft a simple will in less than three minutes, and that the whole thing including review and counsel should take two hours (which I note by the way, is still “as if it took them hours”).

This is fantasy.  Any will “drafted” in three minutes should be rejected by the draft board as legally unfit to serve.  The two hour total time estimate is equally fantastic; it is not uncommon for me to run close to that just with the initial consultation.  A lot of that time is spent educating clients on the basics of how wills and trusts work (seminars only sink in so far), fathom what issues may arise in their particular family situation, and suggest solutions.  Good planning is less about the time spent drafting, and more about the value delivered to the client in designing and maintaining a plan that actually works.  There is no charge for the training and experience which allows the lawyer to provide this value.  Who wants to pay for information?  The charge is for the value delivered, as perceived by the willing client.

Until clients are walked through the issues, some of general application and some particular to their own family, they are really not to blame for shopping on price alone.  The key thing initially is getting them in front of a competent lawyer—not simply some litigator dabbling in estate planning, but an experienced one with a tax background — who can explain the issues to them.  Anything or anyone who prevents this initial consultation from occurring—for example, by claiming attorney fees are high when, in reality, initial consultations are often free or inexpensive—is doing these families a disservice.

It is common for folks to start out saying “I just want a simple will.”  They stop saying that after the initial meeting.  They learn about some of the tax issues involved, but they also learn there is much more to estate planning than tax and the main thing is to have a plan that always works because it is always kept up to date because so many things can change, even in times of stability.  Taxes are fine for getting the conversation started, but the real question is:  What kind of legacy do you want to leave for your loved ones?

Well that’s fine, you say, but who is going to pay for all this? There is a grain of truth in the article’s assessment that lawyers need to be more efficient, but only insofar as we all must be more efficient in this terrible economy.  The solution is not to expect suppliers of competent legal counsel to drop their fees to the level of that charged for glorified word processing by purveyors of DIY wills in bookstores and on the internet, “red light districts” devoid of any meaningful personal contact with a competent lawyer.  [In shopping for a phone recently, never once did I expect the price on the state-of-the-art smartphone to be reduced to the price for the big-buttoned bargain model designed just for making calls.  Some people need the big buttons and simplicity, and that may be fine as long as it does not blow up.  I also offer a price-competitive "simple will deal" but one of my requirements is that the clients listen to me try to talk them out of it.]

The ultimate key to a successful estate plan is a long-term, committed professional relationship with one’s estate planning attorney.  That is the most efficient, and really the only effective, way to achieve the education necessary (in both directions) for a truly effective estate plan.  Just as successfully raising a family requires marital commitment, planning to navigate the legal shoals for this family requires a commitment between attorney and clients (and their fiduciaries) to educate themselves on how wills/trusts/powers etc. work, how to properly fund trusts, what changes might be necessary due to changes in law, family, or assets.

Hopefully, you can see by now that even calling an attorney for new trust documents every five or ten years (let alone DIY planning) does not ensure you have a working plan for your family.  Yet this is the approach often taken, sometimes with disastrous results.  Rarely, in fact, do plans achieve their maximum potential or conform exactly to what was intended.

If you can afford it, you can pay an attorney thousands extra for complete maintenance of your trust-based plan, including amendments and funding.

Not everyone can afford thousands extra, not now.  The need for ongoing education remains however, and I have a solution.

My solution in the current economic climate is to offer a weekly Family Protection Clinic and Trust Maintenance Workshop as a fun way to meet occasionally, update clients on the issues involved, and give them the knowledge they need to operate and maintain their own trusts.  With what they learn at this clinic, clients can minimize cost by handling most of the trust funding transfers themselves, but I can assist where needed.

Most would agree my Clinic is unique, but it is similar in some respects to what is offered by those estate planning firms hosting western barbecues, scrapbook parties, tennis clinics, and the like, in order to form that relationship and encourage regular, educational contact with their clients.  It is designed to be fun (bring the kids) as well as practical and informative and is free to anyone, not just clients.  You can register at http://GUNTRUST.ORG  – repeat attendance is encouraged and you are welcome to bring friends.

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