Should I Do My Own Estate Planning?

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Today there are limitless software programs and books that promote doing your own estate plan. Websites and self-help companies will sell forms claiming to help you create your own estate plan almost for free! Although it may be tempting to do so, you should think very carefully before undertaking the do-it-yourself approach.

Researching information on the Internet can be used as a means to provide various questions to the advisory team; however it will ultimately be the expert’s experiences that will make sure the strategies set forth apply to your plan. Advisors become experts not just by knowing the textbook terminology, but by having in-depth experience handling and implementing the recommendations they have made.

Estate planning is a very complex area of the law that requires years of education and experience to master. Even among attorneys, a generalist may lack the skills necessary to competently assist you with proper estate planning. And it’s even more difficult for a layman. The consequences of a poorly designed estate plan can be far-reaching. After all, you will be planning for the two things that most people find extremely important: everything you own and everyone you love.

Software packages and forms available on the Internet may not reflect each state’s specific laws. In addition, most forms are very generic and lack the depth to handle most family complexities and unique planning situations. A generic form can never reflect your specific goals for your loved ones, nor can they incorporate your beliefs and values. These shortcomings are acknowledged by the companies that promote their use. That’s why they include disclaimers that advise you to seek the help of an attorney prior to signing the documents. In short, using preprinted forms is likely to lead to poor results.

For example, it is not uncommon to find standard form trust documents that do not contain any provisions for removal or replacement of a Trustee when an acting Trustee dies or becomes disabled. You may prefer to grant to your adult children or others you trust, the power to remove a Trustee or to fill a Trustee vacancy. Using a form that lacks this specific provision, your children may be forced to bring a court action to replace a non-performing or unsatisfactory Trustee.

Do-it-yourself forms often leave the determination of your disability to one doctor, instead of seeking a second opinion or using a disability panel that may include family members. They often don’t provide planning for estate taxes, and they usually call for outright distributions to heirs. You’ll see in subsequent chapters that you can gain a lot of protections for your children and grandchildren that are forfeited with an outright distribution of funds.

Another problem with generic forms is that they may lack specific instructions related to document signing procedures, or may provide instructions that do not meet your state’s requirements. For example, a standard will may have instructions that indicate two witnesses are required to witness and sign the will. However, if one of the persons acting as a witness were also receiving a benefit from the will, they would be considered an “interested witness” under most state laws. As an interested witness, it opens the door to disgruntled heirs to challenge the will on the belief that it might have been signed under duress, fraud, and/or undue influence.

Vendors of software programs and preprinted forms often advertise that the documents are “valid in all 50 states.” The issue, though, is not whether the documents are valid. In fact, a will written and dated in your own handwriting in pencil on a page torn from a spiral-bound note- book may be valid in some states. The issue is whether the documents actually represent your specific wishes, achieve your specific goals, and take into consideration all the legal and financial issues that may have an impact. [A coupon for a free hamburger may be valid in all 50 states, but that doesn’t mean that the hamburger is the best meal for you, or the meal that you want
or need.]

Of course, not all things claimed to be valid are in fact valid. One example comes from one of the most advertised sites offering legal documents. In the section that provides pricing information for Louisiana documents, it notes: “In order for the county recorder to provide you with a copy of the new deed, two deeds must be recorded.” Louisiana has parishes, not counties. Louisiana does not use deeds to transfer property. Documents are recorded at the clerk of court’s office—there is no office called the “county recorder.” If the form sellers make three mistakes in one sentence on such a simple matter on their website, one might wonder how many other mistakes lurk in the documents themselves.

Another service’s website confidently assures its prospective customers:” This document is a statutory will codicil drafted in accordance with, and uses the attestation clause contained in, La. R .S. 9:2442B”—a specific Louisiana law. (They think it provides extra credibility when they cite a specific statute.) The only problem is that La. R .S. 9:2442 was repealed in 1999. While it is possible for a layman to prepare an estate plan from Internet forms and instructions, it’s equally possible to perform an appendectomy following Internet instructions. Neither act, however, is recommended.