When a new client brought in his parent’s handwritten estate planning documents to be probated, he was taken aback at the defects we pointed out. He was even more shocked at the projected cost of probating the Will in spite of these defects. He had no idea (and neither had his father) that what seemed like a relative straight-forward estate would become so complicated and costly.
We have also seen do-it-yourself (D.I.Y.) documents with even more issues. We understand the attractiveness of online legal services (such as websites that may rhyme with Regal Doom), but it is abundantly clear that the potential pitfalls of using such websites are unclear and unknown to the average user.
Thus, we are compelled to address what seems to be a D.I.Y. epidemic. Perhaps people have seen too many episodes of Fixer Upper and think they can do anything from their home renovations to their legal documents, but that is simply not the case! While I strongly encourage the independent spirit and self-confidence of D.I.Y-ers (hey, this nation was founded by D.I.Y.-ers!), the spirit and confidence can go very wrong when it comes to the nuances of legal drafting.
Four Reasons Not to Draft Your Own Estate Planning Documents:
1. User Error
One thing that is consistently a problem when I review D.I.Y. documents, is that the person relied on a fill-in-the-blank style form. It’s not that the language in the form is inherently invalid, but the information and instructions are unclear or the person does not know the legal definitions of some words. Inevitably, we are left with an ambiguous and problematic document.
For example, the user may unknowingly make incomplete bequests of property or they may not execute the document correctly, making the entire thing invalid. Residuary clauses, witnesses, notary signatures and a self-proving affidavit are only some of the things you need to be careful about when creating a will in Texas. No form is going to describe the best way to make specific bequests, to provide for and protect your children or to disinherit someone without having to include them in the probate process after you’re gone.
2. Forms do not fit everyone
Do you think you have an easy plan because you have what you might call a “traditional” family (married, 2 kids, a house and white picket fence) or a “simple” estate (one house, a bank account, life insurance and personal property)? Unfortunately, the planning is still not that simple. Are your children minors? You will need a specific legal document to name guardians for children if something happens to you. Also, you will want to be careful about how they inherit — usually parents want to avoid having a large sum of money end up in the court’s control and then landing in your children’s laps when they turn 18. Are they already adults? Have they ever had financial problems? Are they married (in which case, could they become divorced at some point)? All of these questions (and many more) factor into the specific provisions of your documents, and an experienced estate planning attorney makes sure your goals and wishes for your family and estate are carried out, without the potential mess that inexperienced drafting creates.
3. Every state has its own laws regarding wills, trusts and powers of attorney
What you learned from probating Dad’s will in California does not necessarily apply to your estate planning or the probate process in Texas. In some states, the probate process is so expensive and cumbersome that everyone creates a plan to avoid it by having a revocable trust or other estate planning in place. In Texas, we have an option to probate through an “independent administration,” which is actually pretty simple and cost effective. An independent administration is available to those who have specific language in their wills. Your run-of-the-mill forms are not going to be state-specific and are not going to provide the legal guidance you need to navigate and plan around your state’s probate laws, which leads me to my final point…
4. “Legal” websites do NOT provide legal advice!
If you read the fine print, you will see that they are very clear about disclaiming any legal responsibility for any “advice” you may glean from their websites. They are not liable for your forms and documents and will not be there to support you or your family members in the event a form from their site is challenged. You are on your own and so are your estate beneficiaries. Would you go to a doctor’s office who prescribed medication to you while also saying “but we have no idea how this is going to play out or if it really works, so listen to my advice at your own risk!” Hopefully not, and this logic applies to handling legal matters as well. An attorney will work to make sure your documents not only clearly express your intentions, but that they are also valid and executed properly.
Don’t be afraid of probate in Texas if you have valid, clear, well-written documents. If you draft your own documents because you want to save a few dollars now, it is more than likely your family and loved ones will end up spending much more to straighten out problems after you are gone.
–Thrash Law Firm