Confessions of an Estate Planning Attorney

I feel like the heart surgeon you see outside the ER stealing a smoke on her break....what is my dirty little secret?  My estate planning documents, including my Will, are over 8 years old and outdated.  I advise all of my clients after they sign their estate planning documents to revisit their documents at least every five years (no matter what), but earlier in the case of: divorce, marriage, births, deaths, inheritance, changes in financial positions or other serious life changes.  In the last 8 years there have been births and deaths in my family, changes in the tax code and just a general re-thinking of how and who I want to administer my estate when I die.  I must admit this gives me immense anxiety when I think about the fact that should I die tomorrow, it would not be as seamless a process as it could be with an updated Will.  

I see so many of my clients struggle with completing their estate planning documents.  Like me, they know it needs to be done, but the reality is that it can be overwhelming to sit down and think about your own mortality and to make serious decisions like, "who will raise your children if you can't do it?"  For a busy family, it just seems plain unreasonable to review 30+ pages of legal documents!  I am just as guilty of procrastinating.  The tasks of practicing law, raising three children and the day-to-day obligations of life have been roadblocks to updating my documents too.  However, recently I have seen too many instances in my practice where an outdated Will has caused a lot of problems for the surviving family during the probate process.  Some of them simply made the probate process more burdensome for their families and others made dispositions of property that the family knew the Decedent would not have wanted.  If only they had taken the time to update their Wills.  So, last week I committed to updating my documents and my husband's documents.  There are so many stresses in life that you have no control over - updating your estate planning documents is not one of them.  I will be glad to have put this stress to rest by the end of this week...at least for the next five years.  

DIY Wills - Why Not?

Many times at the end of a consultation or during a conversation with a friend I get the question - "Why can't I just use one of those online programs (e.g. Legal Zoom, etc.) to draft my Will and save money?"  As a mother of three and solo practitioner, I can appreciate the desire to save money.  However, as an attorney, the ease with which non-attorneys can misinterpret these "plug-in" online documents makes me very nervous.  It seems that you can purchase any legal document that you need online for the equivalent of a decent meal these days.  

While I agree it is essential that everyone have important legal documents in place, such as estate planning documents, I don't think this is an area where it is always prudent to look for the "best deal."  Most people believe that they have a "very simple estate" simply because they are not multimillionaires.  Unfortunately, whether you in fact have a simple estate is not entirely dependent on your wealth status.  Do any of your beneficiaries receive government assistance, or are they disabled?  You may need special trusts set up in your Will.  Do you have minor children?  You will need trusts and guardianship provisions.  Do you have religious and/or philosophical beliefs that you hold strongly and want to make sure your Agent under a Medical Power of Attorney adheres to?  Do you anticipate a Will contest?  Do you have out of state property?  These are just a few of the questions that could ultimately turn your "simple Will" into one that requires more attention.

In the State of Texas, probating a properly drafted Will is a very simple, efficient and time effective process.  Probating a Will that is not properly drafted could result in a very different scenario - including a loss of estate resources that would have otherwise gone to the beneficiaries and long and expensive "dependent administrations," to name a few.  The difference between these two could be as simple as the omission or inclusion of one wrong word in your documents.  Another area where I see non-attorneys make mistakes in these documents is misinterpreting the form questions that the online service is asking.  For example, do you understand the difference between an Executor and Trustee?  What about the roles of your Guardians for your minor children?  What about trusts for your minor children - how will these work? How do you customize your documents to meet religious and philosophical needs?  Are you including language that is against public policy in your Wills and Trusts?  Do you understand how to determine if you have a taxable estate?  Beyond drafting the documents, there is also the matter of the execution of the documents.  Again, this is an area where non-attorneys are susceptible to errors that could damage the integrity of the documents.  Do you need a witness and a notary?  Can you just use a notary?  Are there rules about who may serve as a witness on these various estate planning documents? 

Hopefully these questions will help you make an informed decision about which method is right for you and your family.