Don't try Do It Yourself Estate Planning
Introduction
The phrase “Do it Yourself” evokes images of a weekend trip to the Home Depot, a bruised thumb, and the feeling of satisfaction that comes from a freshly painted room, a repaired deck or a newly-constructed patio planter. But even the experts at do-it-yourself publications such as This Old House frequently remind us not to delve into projects in the domain of experts such as plumbers, electricians, excavators and the like. The consequences there -- a broken gas main or electrical shocks -- could have disastrous results.
In recent years, do-it-yourself computer(“DIY”) providers have emerged in many fields ranging from income tax preparation to estate planning. These services purport to provide, at low cost, the ability to generate computer-drafted documents that may bear some of the hallmarks of professionally-prepared documents. While these services provide tools to enable the DIY project, as with the home improvement world, they should not be used.
Those who seek to replace proper professional advice with a do-it-yourself online document in complex fields like estate planning should understand the effects of their actions. One should bear in mind that even those with fairly sophisticated skills think twice before venturing beyond their area of expertise. Consider eminent Judge Rifkind's observation on the subject of tax law that “after 50 years of practice, I would no more have the audacity to formulate my own tax return than I would engage in open heart surgery.”[1]
These concerns prompted the American Bar Association Section of Real Property Trust & Estate Law (the “Section”) to designate this Task Force to evaluate the use of DIY methods in estate planning. The Task Force has considered a number of issues, including the reasons why DIY options may be inadequate or incomplete for many individuals. The Task Force is reviewing much of the commentary on DIY estate planning and will publish a more detailed report in the future. This Preliminary Commentary identifies some of the many concerns identified by the Task Force.
The Emergence of Internet-Based DIY Tools
DIY providers promote themselves by charging cheap rates for cheap documents that ordinarily would cost much more if produced by an attorney. Questions have arisen as to whether DIY legal providers are engaged in the unauthorized practice of law. LegalZoom alone has been sued in at least three states (Missouri, North Carolina and Connecticut) for violating those states’ unauthorized practice of law statutes.[6]
As some attorneys have noted, perhaps the greatest danger of preparing one’s estate plan with LegalZoom or other DIY legal providers is that they lull clients into a false sense of security.[7]
Historically, what we now casually describe as a “Will” carried the more somber label “Last Will and Testament.” That label accurately conveys the importance that should be afforded such instruments -- a Will is one of the few human acts that survives death. It carries a legacy that can have lasting financial and emotional consequences on those who matter most -- our loved ones. Mistakes made in the drafting of such an important document can profoundly alter familial relationships, leaving our family members at best confused or disappointed and at worst locked in hostile litigation.
Consider one example. A New Jersey resident opted to purchase -- surely at a nominal cost -- a Will form kit. He carefully handwrote his intended dispositions into the form document. He did not have it properly witnessed. Undoubtedly believing he had completed his “simple Will” properly, he signed it and then apparently committed suicide. His heirs, however, eventually paid for his efforts. In the ensuing lawsuit (Matter of Will of Feree),[8]a New Jersey trial court struggled to find a way to interpret and give effect to his handwritten additions to the form. Under New Jersey probate law, the language on the pre-printed form was not admissible because the Will was not properly signed by Mr. Feree (most states require a Will to be signed in the presence of two witnesses, a few even require three witnesses). The Court’s effort to salvage Mr. Feree’s work -- and the ensuing trip to the New Jersey appellate court -- almost certainly cost the family tens of thousands of dollars or more. At least Mr. Feree never saw that enormous expenditure -- he passed away believing he had saved money.[9]
Will Your DIY Plan Work When You are Gone? Maybe not
A Will must meet requirements for probate, properly make dispositions of the estate, address the payment of debts, taxes and other obligations, appoint fiduciaries to administer the estate and potentially guardians for minor children, and achieve all of that without creating litigation or hostility among the beneficiaries. A person who drafts his own Will must bear in mind that the critical test of his efforts will occur after his death. At that point, his voice has been forever silenced. If he does prepares his Will on his own, it’s likely no one -- or at least no person who is not seen as biased due to his financial interest in the outcome -- will be able to explain his intentions.
source http://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/diy_estate_planning.html
