Before Setting up Your Own Will or Trust on Line or With an Inexpensive Kit or Book Read the Disclaimers [2011-05-26]
Attorney Douglas Peterson
With the availability of technology afforded us by computers, the internet and search engines it is easy to purchase a program or find a free or inexpensive website offering will and trust preparation materials. If you take the time to read the fine print associated with these services you will find extensive disclaimers – they guarantee nothing and indicate that you are proceeding at your own risk. This language is completely at odds with the seeming security attached to the internet process and the comfortable feeling that so many others are doing it, it must be safe. Besides, my situation is not that complicated. With the recent economic downturn this approach may seem more attractive.
Familiarity with legal issues surrounding these documents is only one reason why care should be taken to obtain the services of a lawyer versed in trust law when drawing up a will or setting up a revocable living trust. The most significant pitfall with this approach is possibly that in taking the lawyer out of the equation, a person is missing out on one of the few times in a lifetime when they might otherwise have occasion to consult with an attorney to ask questions, and more importantly, to have the lawyer ask questions that may have never even occurred to him or her. Who is deciding that your situation is “not that complicated”. It is a bit like deciding that the pain in your chest is not that seriouis. Many times the facts elicited by a live attorney point out important issues that need to be considered either in the drafting of the will, or trust or another separate document. These questions and issues can range from estate taxes, to the use of joint property forms of ownership or marital relationships past, present and future, or perhaps problems posed by children (in any generation) born out of wedlock. Moreover, although the laws of the various states may be similar, they are more likely to have quirks that can upset the best laid plans because of drafting oversights that did not consider these quirks, such as anti lapse, survival and class gift laws, or per stirpes vs per capita distribution schemes and gift over clauses to avoid intestacy in all events. There just is no substitute for a face to face meeting between lawyer and client. Even the best online questionnaire cannot detect problems with the answers being given ranging from discomfort to evasiveness or even outright confusion. It is not uncommon for a client to find after the initial consultation that they really are not fully prepared to make a will but need to think over and decide some of these issues before proceeding.
A will is not just a piece of paper containing special words that everyone should have, it can become a vehicle upon which your family and your estate may have to take a ride some day through the world of probate and estate taxes. Do you really want them to have the “do it yourself” version? Finally, consider that during the process of working with a client on a will other important issues may occur to the lawyer that he or she can begin to counsel the client about to head off problems that may lie ahead. Making a will or trust, or any other legal document for that matter, should not be an adventure in proving oneself independent and thrifty at the expense of his or her own welfare as well as that of his or her family or anyone else affected by the documents.