Where There’s A Will…. Estate Planning and Wills

Many individuals ponder whether to make an appointment with an attorney when all that is needed is a will or other estate planning document. There are many over-the-counter products available in office supply stores and via the Internet. The forms seem extremely simple. The publishers of the “off-the-shelf” products guarantee that the documents comply with the laws of each state. Why spend the extra money going to an attorney when an intelligent person can “do-it-himself” (or “herself”)? Why indeed?

We all get information on the Internet about many subjects. I routinely go to the Internet to get information on medical symptoms I am experiencing, and other issues I am interested in. My clients are always bringing me valuable information from the Internet. I do much of my own legal research on the Internet.

What’s the difference between having a layperson do the research and drafting and having an experienced attorney do it? The answer is that often the difference is critical, even in the situation of a “small” estate and simple estate planning documents.

Recently, I went to my car dealership for a routine oil change. After putting my car on the lift, the technicians found a tear in the axel boot that was leaking oil. If unattended, this tear would have caused a much larger problem, and even a dangerous situation on the road. If I had done the oil change myself, the greater problem would have been missed. 

After doing the initial Internet research on my medical malady, I asked questions of my primary care physician, my chiropractor, and my brother (who happens to be a physician), and got additional information from each of them. This information will assist me greatly.

A similar situation exists when you visit an estate planning lawyer. The lawyer will ask a number of important screening questions, much like a doctor on a medical visit or the service desk of a car dealership. By asking questions, we diagnose the client’s goals, property situation, and any unusual circumstances. Lawyers are trained to see “red flags” and generally, even in the most straightforward situations, a couple of “red flags” will pop up.

Lawyers will determine which property is jointly held, and can explain the implications of the property’s joint status and how it would play out in an estate plan. Sometimes the client did not intend these implications, and remedial actions must be performed. Lawyers can find out about the titling of real property, and can assist in the analysis and protection of that property.

An important and integral part of the estate planning process is accounting for non-probate assets. These are assets that have beneficiary designations, such as life insurance, 401(k)’s, and IRA’s. These assets do not pass through your will, assuming a beneficiary is named. (In certain, very rare cases, the property will not even pass through your will if no beneficiary is named, and will go to your next of kin  a result you may not want.)

The most prevalent mistake of “do-it-yourself” estate planners is making the beneficiaries of non-probate assets inconsistent with your testamentary intent. For instance, I was at the hospital bed of a terminal patient who told me that she changed the beneficiary of her very large IRA to her (new) husband. In checking this out days before her death, I discovered that husband #1 was still her beneficiary. Before her death days later, she had time to change the beneficiary designation with my assistance. (Note that all facts have been changed to ensure confidentiality.) You will not find this kind of service with pre-made forms available in stores.

Another great benefit of actually seeing a lawyer (even for a simple estate plan) is that an attorney can help you with ancillary financial planning advice and answer other legal questions you may have. Your attorney will likely be delighted to answer your questions, and if necessary can send you to a proper legal (or other) specialist to handle other questions you may have.

An intelligent, informed client helps an attorney work better. An attorney is really on a team with the client. The client brings in the knowledge of his or her situation, and the law the client knows or has discovered on the Internet or by talking with people. When coupled with the attorney’s expertise, knowledge of the law, and experience, a winning team is created. Together, the client and the lawyer can establish the best estate plan possible.