A last will and testament is a fundamental part of any effective estate plan. At its essential core, a Will directs where someone’s property goes when they die. In most cases, a Will also contains a nomination of someone to serve as personal representative of their estate (executor) and may contain provisions relating to the necessity of a bond and the need for “supervised” or “independent” probate administration. Property subject to a Will must go through the probate court in order to be transferred. While a Will is part of nearly any estate plan, comprehensive planning often seeks to avoid probate and therefore often bypasses the use of a Will. Indeed, probate avoidance is commonly a central goal of effective estate planning and tools like a beneficiary designation, a living trust and a beneficiary deed are often utilized to avoid probate—each of which take property outside of the control of a Will. While the specifics of any estate plan vary, a Will is nearly always one tool that we use to effectively reach a client’s goals.
Do I really need a lawyer to help me with estate planning documents? Aren’t there enough internet resources out there to get me what I need? From time to time, a client or potential client will ask me these sorts of questions. There is little doubt that web-based resources are the low-cost provider in the estate planning industry. In most cases, what you can find online will indeed cost less than legal counsel, guidance and service from a lawyer. So, the question then becomes: what level of quality, expertise and legal counsel do I get? In the end, there are a number of reasons why this approach is ill-advised:
(1) Generic Cookie Cutter Forms. By nature, form-type documents are not tailored to the goals, concerns and priorities of a client. While it is conceivable that the provisions contained in a form provided online could match your goals, it is, in practice, highly unlikely. In nearly every instance in which I have subsequently reviewed a client’s “self-help” documents, they have been woefully inadequate.
(2) Missing Legal Requirements? Certain estate planning documents have stringent statutory requirements as to the manner in which they are signed, how many witnesses may be required and even what language must be included. These legal requirements are often overlooked and you can readily end up with a document that “seems” like its complete and enforceable but it simply is not.
(3) No Related Counsel. Effective estate planning includes meaningful expert counsel from your lawyer. Beyond just preparing documents, an effective estate planning attorney will be able to discuss your goals, questions and priorities in a way that leads to good decision making about estate planning. Additionally, related counsel about property ownership and similar are an important part of good legal counsel and can only be effectively provided by an experienced lawyer.