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Fill-in-the-Blank Legal Documents: What Could Go Wrong?

Legal DocumentsHow’s this for a deal: “Estate plans starting at $199!” Plug a few names and other details into web-based templates, and suddenly, you have a will! Powers of attorney! Even a trust! Of course, easy is appealing, and the bargain-basement price is tempting.

If you live a generic life – with family members who all get along, no assets to worry about, and the ability to foretell anything and everything that might happen in your life in the years to come – a one-size-fits-all estate plan may be just what you need.

I can tell you that in far too many instances, I have been called on to review do-it-yourself documents that were inadequate, didn’t anticipate an unexpected illness or death, ignored the tax implications of how they allocated retirement accounts or other assets, and—in some cases—were simply the wrong documents! As a result, well-intentioned people ended up passing on financial stress and hardship to their loved ones and increased the likelihood that their final wishes would not (or could not) be carried out.

Websites won’t ask you, “What if?”

What if the beneficiaries of your estate plan don’t outlive you like you assume they will? What if your children stop talking to you (or each other), or get divorced, or have unexpected kids of their own? What if your business skyrockets in value or withers prematurely like so many did during Covid?

And then there’s the most important what-if question of all: What if we could craft a plan that gives you maximum peace of mind? That can only come through thoughtful conversation and careful consideration. There are tough questions to ask and answer. I always encourage my clients to dream their best dreams…and to be as ready as they almost inevitably play out differently than you ever thought they would.

Boilerplate online documents that were designed to “work” for thousands of users just can’t be counted on to handle the one-of-a-kind circumstances of your life. In my experience, many (if not most) of these wills aren’t worth the paper on which they were written. I will never forget the retired lawyer who brought me his DIY Will. I read it and told him that if he had died with that will in place, the probate case to decipher what he meant could have taken a year.

Trouble-shooting comes before document signing.

It’s not unusual for those of us in our estate-planning group to hear requests such as: “My mom wants to add my name to the deed to her home. Can you help me do that?”

The website answer would be: “Yes. Click here and fill out a deed.”

Our answer would be: “Yes. But there are some things to consider before you actually do that.” There could be big and costly income tax and gift tax implications. Maybe there’s a better, safer, more tax-efficient way to accomplish your goals.” After learning about the pitfalls, very few of our clients elect to proceed with re-deeding real estate. The same concerns may arise if you want to name a child as a co-owner of a bank account. It’s doable, but it can also turn into a classic case of “no good deed goes unpunished” if that child has financial problems or goes through a divorce—and that jointly titled account counts as one of their assets.

It’s the follow-up questions that truly distinguish a living, breathing attorney from a website. Should you name an alternate guardian for children? Should you name a co-guardian? Should you name your sister’s spouse as a co-guardian since he or she will presumably share childcare responsibility? Should your sister also serve as trustee of your children’s trusts? There might be very important reasons you considered to separate those two roles. What may have seemed like a simple fill-in-the-blank ought to involve a thoughtful, thorough discussion.

Read their disclaimers If you are tempted to do your estate planning online.

If a law firm were to explain what it does, it might say something like: “We allow you to talk to an attorney. Your communications with that attorney are protected by the attorney-client privilege. We can give you advice, explanations, opinions, and/or recommendations about possible legal rights, remedies, defenses, options, selection of forms, and/or strategies.”

Compare that with this disclaimer in the fine print from a popular Will website:

“Communications between you and [the website] are . . . not [protected] by the attorney-client privilege.” “We are not a law firm or a substitute for an attorney or law firm.” “We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.”

Ironically, an attorney clearly wrote those disclaimers. It turns out that even these discount websites seem to need a real human attorney to protect themselves. Why shouldn’t you?