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Software programs and Web sites selling customized, do-it-yourself wills and other estate planning documents seem to offer an inexpensive and convenient alternative to visiting an estate planning attorney. Nobody really likes to discuss their dying wishes and health care directives with a perfect stranger. Additionally, most people are wary of attorney fees. In times of economic uncertainty, families tend to be even more concerned about the cost of legal advice and often put off planning that they hope will not be necessary until they are much older and possibly too late. A simple will, durable power of attorney and health care proxy prepared by a competent estate planning attorney can cost several hundred dollars per person. Online services promise basic estate planning documents for a fraction of that. However, no pre-packaged program can take account of crucial differences in state probate laws and estate tax systems that have wildly different thresholds. Nor do these products encompass the complicated family arrangements so common in current day’s society. As a result, the use of these do-it-yourself products can lead to disastrous results for their users and their families. There is no good substitute for in-person with an experienced estate planning attorney. Estate planning attorneys generally have detailed discussions with their clients about their situation, hopes and goals, including their relationships with their children. If a child has problems with debt, or is anticipating a divorce, or has special needs, certain portions of the estate plan must be adjusted. The online programs typically do not ask these questions or address these potentially critical issues.
Using a do-it-yourself will or other estate planning document may have undesired consequences. There was the Massachusetts man who used a pre-packaged will form to leave his home to his wife and his four grown children. This sounds fine, except that the will didn’t give the wife the option to remain in the house for the rest of her life. A court case ensued because the children, who possessed the majority interest in the property, could have legally forced the wife to move. In another case, after a man passed away his son found his will, which the father had purchased online. The will left specific items and bank accounts to certain people. But in the years after the man had executed the will, some of his beneficiaries had died and some of the specific items mentioned in the will dropped out of his estate. Cars were sold, accounts closed and new ones opened. His will had made no provision for what to do if a beneficiary died and it had no “residuary clause” to tell his executor where items not specifically mentioned in the will should go. Much of what was in the man’s estate passed according to his state’s intestacy laws, as if he had never made a will at all. Trying to save money, the man had cost his intended heirs dearly. In yet another case, a man executed a trust form leaving his substantial estate to one niece, but because he never funded the trust or executed a will, everything was divided among all of his nieces and nephews, including one he didn’t know who lived on the other side of the country.
Many couples have been married more than once or have had more than one relationship that either produced children or that brings with it non-biological children who are viewed as part of the family. Many parents in these so-called “mixed marriages” run into problems with do-it-yourself estate planning documents because they often think of their stepchildren, whom they may not have legally adopted, as their own children. When the parents then draft do-it-yourself wills or trusts leaving their estate to their “children,” legal chaos can ensue and it often takes a court to sort out what a parent actually wanted to accomplish with the estate plan. Did he want to leave his property to his entire, extended, family (including stepchildren) or merely to his biological children? Litigation in this area can be prohibitively expensive and often ends up exhausting the parent’s estate. In a recent case, $100,000.00 in legal fees and costs was spent to claim the stepchildren’s inheritance. Second marriages, especially those in which one or both partners have children from a previous relationship, add planning concerns not addressed in these products.
Few if any of the online products offer parents the opportunity to protect their adult children from some of the financial consequences of divorce, bankruptcy, and illness. Rather than giving an inheritance to a child outright and risk the child’s later losing it to creditors or in a divorce settlement, parents can create “spendthrift” or “family protection” trusts that hold assets for the child. This shields the inherited assets from some (but not all) creditors.
One of the most delicate areas of estate planning involves families of children with special needs. In most cases, especially when the child with special needs receives or anticipates receiving government benefits, it is essential to avoid leaving money to the child directly. An entire category of trusts, known as supplemental needs or special needs trusts, are designed to work within the unknowledgeable rules and restrictions of governing disability benefits. The do-it-yourself estate planning products typically do not account for these special, and very complicated, rules. When a child with special needs is involved, an improper distribution from a parent’s do-it-yourself estate plan could result in the loss of the child’s health insurance, education, and supported living arrangement, along with the disappearance of the inheritance due to mismanagement or to dishonest individuals taking advantage of the child’s finances.
Estate planning involves a lot more than the simple preparation of documents. It is impossible to know, without a legal education and years of experience, what the right legal solution is to any particular situation and what planning opportunities are available. The actual documents produced are simply tools to put into effect the best plan developed based on each client’s particular situation and goals. If there is anything about a family situation that’s not commonplace, using a “do-it-yourself” estate planning program means taking a huge risk that may affect one’s family for many generations. Lastly, the problems created by not getting competent legal advice probably won’t be shouldered by the person creating the do-it-yourself Will, but they may well be suffered by the person’s children and grandchildren.