Why Should I Hire an Attorney to Create an Estate Plan Instead of Doing it Myself?
You have taken some time to do a little research and decided that you need an estate plan. Maybe you have even called around to a few law firms to get price quotes and you find that you can’t get a straight answer. They say “it depends” and quote you from $2,000-$5,000 for a “straight forward” plan. Then you find a website that allows you to use their template and plug in your information. They even say you will get legal advice. It sounds great because it’s under $200! Here is where you should ask…why is it so cheap to do online by yourself and why don’t lawyers give me a direct quote?
UPDATE: I have created a course for people who want to draft their own will! It is a step by step guide to doing it in a legal way, and it includes access to me to ask questions and get feedback. Click here to learn more!
Many people, including myself, are frustrated when pricing is not upfront. It can lead people to create estate plans for themselves out of convenience and it seems so easy! There are good reasons to hire a knowledgeable attorney. Not only are you hiring someone who can take your information and create the end result that you are seeking, but you are paying someone to know the laws, advise you on a better plan, catch tax savings, and you know who to go to when you have to make a change.
My colleagues and I have shared some real life horror stories about DIY estate planning and I wanted to extend them to you so that you can think twice before falling for a cheap price tag, after all, you get what you pay for! Here are some real stories from my colleagues:
SPECIAL NEEDS: I had a client three years ago where the Testator had a Special Needs Child and another child with severe drug problems. She copied and pasted Will provisions from the internet. She was trying to set up a Testamentary Special Needs Trust and disinherit the other child. It might have worked, but she failed to get a second witness signature. The Court wouldn’t recognize it and all of the assets were split evenly, outright. Public benefits were affected and the drug-addict child wreaked havoc until we were hired.
SIGNATURE ISSUE: I recently probated a Will where one of the witness signatures was barely legible. Thankfully, we were able to find a sibling was present when the Will was signed so that we could begin the process of tracking down the witness for interrogatories. It wasted a great deal of time and money.
FAILURE TO CREATE A CONTINGENCY PLAN: I had a client a couple of years ago that left assets in a (poorly drafted) lifetime trust for an only child. Per the terms of trust, if the child dies with assets remaining in trust, the remaining assets are to distribute to the child's descendants. Two years after the mother's death, the child died without any descendants. We had to petition the court for instructions regarding the contingent beneficiaries. The court confirmed the beneficiaries, then ordered us to open a probate and distribute the assets to an administrator of the mother's estate. In the final petition to close the probate on the mother's estate, we had to refer back to the order on the petition for instructions for the identification of the heirs. The judge on the probate petition initially wanted us to distribute to the administrator of the post-deceased daughter's estate before distributing to the mother's heirs.
TOO MUCH INFORMATION: I had a case recently where the husband DIY’d his Will listing out all his assets in detail, including the amount, the location of each asset, etc. In fact, all these assets would be left to one child born to the husband and wife. After the husband died, one illegitimate child unexpectedly showed up and intended to contest the Will. The surviving wife hesitated to have the Will admitted at the probate court because the contents of the Will would become public and then the illegitimate child would know the scale of the estate and locations of the assets, etc. (the deceased has a significant amount of overseas assets). This is a typical failed DIY project.
FAILURE TO WITNESS CORRECTLY: I had a case a few years ago where the DIY Will was not properly attested, so we had to find the witnesses and they had to testify in court. There were several other issues that created a lot of extra time and expense for the estate. The worst part was the detail in the Will - it got down to specific quilts and knickknacks that went to grandchildren and others so the estate had about 20 beneficiaries. The legal fees were about $20,000 when they could have been a fraction of that. The heirs paid for his DIY Will handsomely.
NOT SPECIFIC ENOUGH: I had a client with a DIY Legal Zoom Will which left all of decedent's assets to "my descendants in equal shares." The deceased had two children and four grandchildren. Although we did not probate the will, it would have left the estate in six shares instead of two, which is what he intended to do.
EXECUTION ISSUES: I had a case where the Will was found to be invalid in court for lack of proper execution. The result was that the deceased person’s previous Will (which was not properly destroyed upon creation of the later will that was found to be invalid) controlled and the surviving spouse was not given the right to disposition of his wife's remains. The wife's remains were transferred to other family out of state and cremated when the husband's desire (and from what extrinsic evidence showed to be, decedent was also the wife's desire) was that she be buried in state and not cremated. The DIY component that failed was not the terms in the will itself, but something as simple as the lack of due execution without the involvement of an attorney that rendered a devastating result.
INCONSISTENCY AND FAILURE TO SPECIFY: Grandpa and Grandma did their own deed work in an attempt to avoid getting an estate plan. They deeded four properties to themselves and their various descendants as joint tenants of right of survivorship. When they died it was a disaster. When we went to sell the first property, the title company said that because there was no acceptance the deed, the deceased coupler were only the joint tenants (with no right of survivorship) and so we had to open probate to handle their interests. For the second property, the joint tenants were Grandma, Grandpa, their daughter, and their 7 year old granddaughter. We had to do a conservatorship for granddaughter so we could sell the property. Property three, same facts as property two, except instead of the 7 year old granddaughter, one joint tenant was a 9 year old grandson - which required yet another conservatorship.
POORLY DRAFTED DOCUMENT: Sadly, this isn't exactly a DYI disaster, but rather non estate planning attorney - it was a friend of the client. It was a joint trust, with many typographical errors, blank pages, references to sections that did not exist, etc.
DIY DISASTER: My most expensive non-contested probate was because a father did a fill-in-the-blank four page Will and did it completely wrong in several areas. We had to petition the court for instructions and the court held an evidentiary hearing.
FAILURE TO SPECIFY: A client told me about her grandfather's DIY attempt. His will said "to the babies." Which babies you ask? That was what the judge wanted to know, too, and he decided it meant heirs to the second cousins twice removed. There were a ton of oil and gas rights and my client told me investigators had already found 360 "babies."
MISTAKE ALLOWS PROPERTY TO GO TO DAUGHTER’S ESTRANGED HUSBAND: I had a DIY Will that was done from an online form, but was improperly filled in. The Will attempted to set up trusts for the grown children, but also included that if her husband outlived her, all of the assets would go to him outright. The daughter and her husband were living in separate homes when Mom wrote the Will and friends and family were sure it was her intent to cut out the husband. Nevertheless, all the property ended up with the estranged husband.
FINANCIAL ADVISOR IMPROPERLY EXECUTED WILL: I was contacted last year about helping a potential new client. She had used an online package from a leading female financial advisor. Somehow a Husband and Wife who never lived in California signed an estate plan that changed their residence from Florida to California, governed by California Law. It had another major problem. The software made the trust on the Husband’s death to remain revocable so that it did not allow the retirement accounts to be handled correctly. The Wife was not able to do a roll over and had to pay $175,000 in federal income tax on the retirement account.
WITNESS FAILURE: A DYI will only had one witness (Florida requires two witnesses). The will was not valid and the estate was probated intestate.
GOOD INTENTION, INCORRECT EXECUTION: This story is more about the process and less about proper documentation. I had a client that downloaded and printed an online will that named her as the beneficiary and took it to her dying mother in the hospital to sign. The court invalidated the will as subject to improper procurement. The result was a three year probate with several court battles and one (out of court) fist fight among siblings.
As you can see, the list is extensive and believe it or not, there are many other ways in which a DIY estate plan can fail. It is a good idea to have your estate plan drafted by a professional if you wish for it to be valid.
Contact me if you have a DIY estate plan that you would like me to review, or if you would like to discuss creating or updating your estate plan.
