The Internet has made it very easy to find answers and instructions on just about anything, including how to develop a do-it-yourself (DYI) estate plan. There are websites and software packages, along with DIY estate planning books and kits that tell prospective customers that you no longer need an attorney to create a will, trust, durable power of attorney, or advance health care directives. If you follow the simple instructions you’ll create your own estate planning documents that will be both legal and enforceable.
Though you’ll often hear the argument that it’s inexpensive and easy and that a DIY estate plan is better than nothing at all, the consequences of not fully understanding the process and making a mistake to save a few dollars are often too great. As you consider your options, here are a few serious potential pitfalls of creating a do-it-yourself estate plan.
Do-it-yourself wills and trusts, as well as other documents, lack the most important component of a solid estate plan… the advice and counsel of an estate planning attorney. DIY estate planning sources provide forms, but don’t provide legal advice. If you read the fine print, they make it clear that they are prohibited from giving legal advice and are never a substitute for an attorney. Your estate plan involves much more than the production of documents.
The most crucial aspect of any properly created estate plan involves an in-depth discussion about not only your estate, but also your specific wishes and goals. A good estate planning attorney is both an investigator and an educator. It’s impossible to know, without legal knowledge and experience, what the best solution is to your individual situation. The actual documents produced are simply the tools used to put a plan that has been specifically tailored to your circumstances, wishes, and goals, into effect.
Estate law is determined by each state and the laws that govern an estate are determined by the state where the person resides when he or she dies. Individual state laws vary greatly on a lot of estate issues, including requirements for executing estate planning documents. Some online companies offering DIY estate planning documents assure consumers that these documents comply with requirements of the maker’s state of residence.
But that may not be the case. An estate plan that is completed by a Virginia estate planning attorney will be written to comply with all current state laws.
Though online estate planning software may produce a legally enforceable document, it is not flexible. It’s a one-size-fits-all, fill-in-the-blanks solution. It minimizes many of the available estate planning options that might be best for your situation, in order to create a process and document that is easy for you to comprehend and follow.
The simplicity built into the online process usually cannot and does not address many of the more complicated, yet common areas that may be specific to your circumstances. For example, the estates of families with young children are much different than those with adult children no longer living at home, or those of families with a special needs child.
The software treats all these scenarios the same way and asks the consumer to make estate planning decisions, often without the expertise or understanding to do so wisely. Simply put, DIY estate plans do not have effective tools that protect the estate or the beneficiaries.
An estate planning attorney has a legal education and continuing education courses, as well as years of experience working with different kinds of clients with many different needs and wishes. An online question and answer form can’t answer a client’s questions or impart legal information or advice. It is not individualized and treats your needs and wishes exactly the same as everyone else who uses the program. Obviously, this is no substitute for the expertise of a knowledgeable attorney who will ask the right questions and create an estate plan for your unique situation. Remember, the unintended mistakes made today, will likely impact your children and grandchildren in the future.
Do-it-yourself software is typically set up to only handle simple estates and can’t deal with even the most common complexities such as children from a prior marriage, property that has appreciated in value resulting in capital gains, or estates that are large enough to be subject to estate taxes. In addition, DIY solutions generally fail to take advantage of sophisticated estate planning strategies because a one-size-fits-all package can’t account for an individual’s unique circumstances.
A DIY estate plan is made by going through an online questionnaire and there is always the risk of inadvertently making an error because you don’t understand the instructions or legal terms, give an incomplete or inaccurate answer, or even skip a question that doesn’t seem relevant to you. If any of those things happen, one of two results may occur: either your estate plan doesn’t do what you think it does, or it could be invalid in part or in its entirety.
The result is that the documents you create could include omissions or contradictions, be invalid, ineffective, or contain legal language that has consequences which you never intended. All of this can complicate the administration of your estate. Since your DIY estate planning documents are not reviewed by an attorney, you might not know if that is the case during your lifetime. But unfortunately at your death, your beneficiaries will find out and may suffer the lasting and potentially expensive consequences of your mistakes.
Saving time and money by making an online DIY estate plan may sound like an appealing idea, but there are many pitfalls and risks. The best way to ensure that your wishes for taking care of your loved ones and distributing your property are carried out after your death is to consult with a knowledgeable and experienced estate planning attorney. In Virginia, Melone Hatley, P.C. is here to help. We offer a full range of estate planning and probate services including wills, trusts, powers of attorney, living wills and advance health care directives, estate tax planning, guardianship and conservatorship, and representation for contested estate matters.
Estate planning is rarely black and white. There are many gray areas that are important. A DIY program may not take some of these into account. If you’re “filling in the blanks,” or even skipping a question or part of the form you don’t feel is relevant, you may not know what you’re missing. Even mistakes in legal language can be costly. Estate law is governed by the state where the person resides when he/she dies, and individual state laws vary greatly on estate issues.
The Commonwealth of Virginia has very specific requirements on how to execute estate planning documents, including who must witness these documents and rules surrounding a self-proving affidavit. A small oversight now could cause huge, and often expensive problems for your loved ones later. Failure to follow statutory formalities for execution may invalidate the entire will.
Some assets pass to your loved one through your will or trust, while other assets pass by law through specific beneficiary designations. Items like savings bonds, certificates of deposits (CDs), life insurance, retirement accounts, and certain types of bank accounts can be designated to automatically pay at death. A knowledgeable estate planning attorney will review all your assets and advise you on how to pass each most easily and inexpensively to the beneficiary. Properly drafted estate planning documents take both types of assets into consideration to ensure that your estate plan follows your wishes.
Drafting your own estate planning documents through a do-it-yourself program,may be a risky endeavor. Though certainly less expensive, a DIY solution takes the most important element out of the process: the knowledge and advice of an experienced estate planning attorney with specialized education and legal training.
Melone Hatley, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about our estate planning services, contact our office today at 703.995.9900 or reach us through our contact page.
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