You and your spouse are flying across the country for some family event—a wedding, the death of a relative—and you’re leaving your infant child behind. A few days before departure you wonder what happens if the plane goes down. Who will inherit your estate or be your child’s guardian? Just in case, you fill out an online will before you leave. Unfortunately, for many people, this is the first and last step they take in estate planning. The Wall Street Journal published an article this week stating scenarios in which online estate plans are effective. We believe they may be better than nothing in emergency situations but should not replace attorney-drafted estate plans.
The article suggests that do-it-yourself estate plans work for people with “uncomplicated estates.” But even in the simplest cases, there are small details that laymen often overlook. For example, testators must retitle assets to fund a trust or else the trust is useless because it owns nothing. This isn’t included in an online trust form, but it’s an essential step in trust planning. Other seemingly small provisions include naming a contingent executor or beneficiary. Failing to address such small details leaves an estate plan open to scrutiny and dispute. It is the attorney’s job to establish the certainty that prevents litigation.
Furthermore, professionals know how to manage estates to maximize savings and minimize taxes paid. They are knowledgeable about the constantly changing estate tax laws and will provide the best advice under the current system. Online forms only provide a narrow range of options. When the system inevitably changes, your online will won’t change with it, and, worse yet, you may not even know of it.
The article makes the important point that if a do-it-yourself estate plan is contested in court, there is no impartial third party to testify about the testator’s expressed intentions at the time of execution. This means that if an estate plan is contested after the testator is deceased, his intentions are decided on a “he said, she said” basis. Litigation can be expensive for the beneficiaries, drain a trust’s assets in legal fees, and distort the last wishes of the deceased. Because “the [drafting] attorney’s testimony, although not conclusive, is entitled to much weight” (Estate of Goetz, 253 Cal. App. 2d 107, 114 (1967)), the cost of an attorney-drafted will is justified by a professional advocate to testify to the testator’s intent.
Do not be lured by the low price of online estate plans: a significant number of trust and will contests and other disputed estate matters arise out of DIY estate planning. The one time cost of an attorney drafted estate plan can save you and your beneficiaries thousands of dollars.