Why Retain an Experienced Estate Planning Lawyer?
The Task Force urges those who may engage in DIY estate planning to evaluate the following considerations before taking the leap and drafting his own estate planning documents:
The Role of the Counselor-at-Law: An estate planning lawyer provides more than technical expertise in drafting complicated documents. Most have extensive experience in counseling clients in these most intimate decisions. For example, most have helped couples sift through the various possible options in selecting a guardian for the couple’s most-cherished “possession” -- their minor children. That decision often seems simple, but the “ideal” guardian candidate may have a less than ideal spouse, lack financial experience, or otherwise be unable or unwilling to serve. Spouses may disagree as to the choice of guardian. They may need advice to understand a guardian’s role. The Counselor-at-Law plays an important role in these and many other estate planning discussions.
The “Simple Plan”: Consider the elderly woman with a seemingly simple plan: she has two loving, adult children (one who lives with her) and two assets: a house worth $300,000 and a bank account worth the same. Her simple solution? She’ll keep both children happy by dividing things equally. So she drafts a Will and leaves the house to her son and the account to her daughter. She tucks the Will in her desk and lives happily ever after. Her children? They are not so happy. After her death, they realize Mom spent down her bank accounts to pay her bills so there is nothing left for the daughter. One can envision the son (who gets the house) telling the daughter he feels sorry for her, but Mom wanted him to have the house. The daughter, of course, concludes Mom’s intent was defeated. She sues the brother.[10]With proper counseling and advice, that suit could have been avoided if Mom’s intentions were properly ascertained and expressed.
The Failure to Properly State Dispositions: A proper Will must clearly state the testamentary intent to dispose of assets. The language used must be dispositive in nature (a letter of instruction or words stating a person’s general preferences will not suffice). Those who draft their own Wills run the risk of using words, terms or descriptions that could fail to make effective dispositions. The failure to use words of “testamentary intention” could void the Will, just as the use of “precatory” language (i.e., “I would like”) could render the dispositions unenforceable.[11]
Who Will Explain Your Intentions? If a dispute arises, the court will often hear a swirl of allegations as to the decedent’s intentions from interested family members. Who will the court believe? Divining the intention of the deceased may be among the most difficult tasks conferred upon any judge. Many may look for the voice of the person who died in a person who had conversations with him while he was alive about what he intended after his death, and does not benefit from the Will -- that, more often than not, is an estate planning lawyer.
Will Your Document Survive Probate? Different states have adopted rules as to the probate of Wills. Some are more complicated than others, but the person drafting a Will should know them. For example, New York law creates a presumption of validity of a Will if it was executed under the supervision of an attorney. New Jersey law imposes a presumption of “undue influence” if a Will benefits a person who stands in a close (“confidential”) relationship with the person who died. An independent attorney may be the most important witness in rebutting such a presumption (if not rebutted, the Will can be declared invalid).
Who Will Keep Your Will Safe? Many states presume a Will was revoked if the person who died possessed the original Will and it cannot be located at death.[12]Given that presumption, it often makes sense to leave the original Will in the possession of the estate planning lawyer who could document custody and control of it. With that type of evidence – even if the lawyer loses it – it may be possible to probate a copy of the Will as no presumption of revocation would apply. An individual may not be aware, much less follow, these arcane rules that might preclude probate.
Tax Guidance: State and federal taxes imposed on estate change often and have become increasingly complicated. Congress recently increased the federal estate tax exemption to $5 million, but that lasts only through the end of 2012. Meanwhile many States, looking for revenue to plug budget gaps, have adopted their own estate tax structures with much lower exemptions (ranging from a few hundred thousand to as much as $5 million). Careful planning needs to be done to realize the potential tax savings that can be achieved through a detailed understanding of numerous options available to reduce estate taxes.
source http://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/diy_estate_planning.html
