Do-It-Yourself (DIY) Estate Planning
Tuesday, April 27, 2021
There is an old adage “he who represents himself has a fool for a client” meaning that even trained lawyers should not represent themselves. I like to add to that advice it is even more important that untrained lay people should not represent themselves in important legal matters, but rather consult with expert attorneys for such matters as Last Wills and Testaments, Trusts, Family Limited Partnerships, Estate Planning, Medicaid Planning, Partnership Agreements, Succession Planning, Powers of Attorney, Health Care Proxies, Living Wills, Deeds with Life Estates and the like. Just reading this list of some of the most common legal documents may cause the reader to question what each of these documents are, what they accomplish, and which combination of documents is appropriate for themselves and their family.
A long and candid discussion with an experienced attorney is warranted and certainly in most cases much more reliable than attempting to draft important documents from boilerplate online forms of those provided in kits with one size (does not) fits all documents. There is no reliable reusable standard form that can best serve every person’s needs, especially in cases of blended families or second or later marriages or persons living together unmarried and or with children or other dependents of different ancestry. Questions of how best to protect everyone and distribute different assets after death as intended in differing amounts or liquidity are complex matters that are way beyond the DIY or pro se estate planning. So too are the complex different tax treatments under state and federal laws that are way beyond the scope of the DIY kits and forms. “You get what you pay for” rings true.
There are too many traps for the unwary in drafting and executing complex or even simple legal documents. Last Wills and other Testamentary Instruments require due execution, witnessing, acknowledgement, and safekeeping. It is too easy for lay people to make critical or fatal mistakes if important documents are not duly executed in accord with statutory requirements.
I have learned over the years to always hire a professional and not fool with repairs alone. What seemed like simple home, appliance or auto improvements or repairs often took much longer than anticipated, caused great frustration and sometimes physical injuries or property damages and often did not save money, but cost more when giving up and having to call the plumber, electrician, technician or other experienced repair person anyway. I recall reading within the last year or so of tragic local stories of a pastor falling off the church roof just cleaning out gutters, a homeowner replacing windows and falling off the ladder, and even the policeman repairing his own dryer and being electrocuted. Each one of them died! So, when my built-in microwave needed a 4th or 5th magnetron and I was tired of paying for what seemed like a simple repair, I quickly located the necessary parts, but when reading the instructions found a warning of electrocution or death from energy stored in the capacitor even while unplugged, I quickly heeded this advice and called back the appliance experts and paid again rather than DIY and possibly DIE. So why not replace the unit you may wonder, well it seems the costly stainless steel convection microwave built into even more expensive custom kitchen cabinets is no longer available in the dimensions of the older unit from either the same or any other brand and will not fit into the space!
Do It Yourself (DIY) kits or online forms can result in serious unintended consequences or fail to accomplish intended results if not properly drafted, duly executed and properly administered.
For example: A Living Trust to be of any consequence must be properly funded (e.g., the grantor’s home deeded to the trust and duly recorded with the county clerk). All too many times inexperienced people fail to fund the trust or use the wrong form of trust and thus not qualify for Medicaid as intended. Other situations welcome unnecessary and costly estate litigation and challenges to DIY Wills or Trusts since no attorney supervised the execution of the documents the statutory presumption of due execution is lost and opens the door to setting aside the testamentary instruments (Wills, Codicils, Trusts) from admission to probate. A properly drafted Will with adequate bequests and Anti-Contest clause can deter such litigation or Will Contest.
For the same reasons dentists do not extract their own teeth, lawyers generally do not draft their own wills, but rather let other professionals handle the important tasks. This is compounded when a non-professional / do-it-yourselfer attempts to tackle the important tasks of drafting, executing and implementing important estate planning and other documents.
The best advice is to seek and employ experts for your important affairs and avoid pennywise pound-foolish self-help kits.
