Updated: May 23, 2019
These days, we’re all busy, with a long list of unfinished tasks and not enough hours in each day to get them done. For many people, one of those unfinished tasks is creating will, trust, and other estate planning documents that will actually work when tested, that can cover the significant events in our lives and what happens when we die, and that can protect our families and loved ones from unnecessary delays, costs, liabilities, and aggravations.
It’s Not All About Dying
People tend to view “getting a will” as relating only to death, but the “planning” involved usually affects most people during their lives, often because they fail to plan at all or because they opt for a “cheap” and ineffective option that either ignores or poorly addresses inevitable lifetime issues. The classic situation is the story you hear about awful lifetime consequences (conservatorships, sudden incapacity, enormous fees) that someone only becomes aware of when it’s too late to act. Effective estate planning considers everything that can happen to a person before they die. Because of advances in medicine, most of us will run into many of these situations during our lives, and our planning will dictate how smoothly we navigate those events.
Services/Relationships vs. Products – Why
Assembly Line Online Formats Don’t Work
We are often exposed to “polar” advice on estate planning. We hear or read online, from people who are not specialized attorneys in estate planning, that everyone should do this technique, or that. The truth is, all situations are different. Estate planning done properly is a service, not a product. It’s not a clothing item you can customize online just by using certain measurements. When you get your hair cut or your retirement planning done, those services have to fit your style and needs, estate planning is no different. For some people, it’s not a fit to have short hair, or a SEP IRA, or a will with testamentary trust, no matter how well those fit someone else. You will likely need to make changes to your plan someday. When you do, it helps to have a relationship with a qualified, specialized attorney who knows you, rather than a web link to Legalzoom or some other impersonal, distant corporate customer service department that probably forces you to submit a frustrating online query, strategically avoiding valuable phone or in-person contact.
Estate planning can’t be done right through impersonal, one-size-fits all forms you buy or download, or in a marketed, assembly-line process on the Internet. Legalzoom, Willmaker, trust “systems,” etc. want you to believe it can, they are often scams to try to collect somewhat smaller amounts of money from a lot of people, they want you to believe it can be done like buying a car or getting a loan, but the processes aren’t the same. Even in this day and age, not everything can be done well on the Internet or via machine/mass production, sometimes there’s no substitute for a specific human interaction. An online platform, even one that claims to be linked to an “attorney,” can’t study your goals, interact with you, or cover many contingencies (such as avoiding courts during life and at death) that require skilled, personal, and customized analysis.
You Get What You Pay For
Because of all of our other expenses in life, we also find many people want to apply the “cheapest possible” strategy to estate planning. They typically get the same predictable result as when they buy the cheapest product or service that breaks or proves worthless shortly after the purchase, for a variety of reasons. Unfortunately, with estate planning, the “cheapest possible” consumers tend to find out years later, often with devastating results, they can’t replace their ineffective, cheap estate plan when it has to be used, it’s not like a broken, low-cost plastic kitchen appliance that can easily be replaced shortly after realizing their mistake. Bad estate planning affects us and our families during times of crisis or loss, which is why the “cheapest possible” strategy doesn’t translate well to this particular service. It’s truly best to save small amounts of money elsewhere.
State Law, Attorney Training, and Specialization Are Critical
With a few exceptions, the law of wills and trusts is based on the law of your particular state. The law of another state might apply, for example, when a Colorado person with a real property interest (house, timeshare, oil/gas/mineral interest) in another state is subject to the probate laws of that other state for that asset because real property, unlike personal property, is probated based on its location. Most online or form products (even if they claim otherwise) are not effectively tailored to reflect all of the laws and procedures of one particular state. This can cause significant problems in their use and administration. Legalzoom and other online or form platforms simply can’t address that issue, they mass-produce a product, not a service only a specialized, local attorney can perform well, and they won’t tell you what they don’t give you, because it’s bad for marketing.
Similarly, online and other services now often claim to have the backing of a “real attorney.” Respectfully, all “attorneys” are not created or trained equally. Estate planning is an extremely complex area of law which, to be done right, requires a licensed attorney and knowledge of tax and transfer laws one learns through significant training and specialization. The “attorney” you get through a service is typically a “generalist” with little or no experience in the specific state law, and likely not a top, local specialist, otherwise they’d have a different job. If you had a heart condition, would you see an inexperienced general practice physician, or someone without a license to practice medicine? No, you’d probably spend the money to go to a well-trained cardiologist. While estate planning is not life or death, getting it wrong can be worse than doing nothing.
A Partial Or Incomplete Plan Is A Waste of Money
Virtually all online "do it yourself" legal systems cover a fraction of the estate planning issues you actually need to consider in life and at death (sometimes as few as 10-30% of the issues you’ll face, if they even work at all). Unless you had specialized training in estate planning, you’d only find out about the 70-90% of issues you didn’t cover when it’s too late, when you or your family are in court spending 5-10 (or likely more) times the “bargain” fee you paid online to supposedly save a few dollars. Doing it “right” the first time always pays, both in dollars and in stress avoidance.
For example, even if an online or “form” estate plan product worked to pass property at death (and it may not even do that), let’s say your beneficiary gets $1,000.00, that product likely would only partially deal with things you resolve through the service of creating a complete estate plan with a qualified attorney, including, but not limited to: planning for your incapacity, beneficiary designations, income and transfer tax issues, staying out of courts during life and at death, long term care, privacy, asset protection, and other major issues products don’t mention because they have no reason to, and which are typically only spotted and resolved by a trained, experienced, specialized attorney.
Those are some of many issues that don’t process well in an online “check the box” format. If Legalzoom, etc. can get thousands of people to spend $99.00-$399.00 or similar in fees, where the consumer doesn’t know what they’re missing, why should they care? The online or form product’s lawyers simply put disclaimers in the fine print limiting all of the issues they’re not covering, works for them. The consumer is often duped into thinking they’ve solved their planning issues just because they see the word “will” or “trust” at the top of a page. The reality for too many is they’ve been scammed into thinking they’re getting a complete and functional plan, rather than a partial one that may not even work as intended.
Doing It Right The First Time
It takes little time, effort, and often less money than most people think to get estate planning properly crossed off a person’s list. For example, our process usually takes about 3 hours total, clients are more than half done after our first (free) meeting, and we offer a range in terms of budgeting. A good attorney will work with you on scheduling, some will offer to come to you, some will do teleconferencing or other convenient formats, but there's only one way to do it "right." Hiring a specialized attorney (with a primary focus in wills and trusts) who is well-trained and consumer-friendly always works better than trying to “do it yourself” or “do it online.” Doing it yourself or doing it online might work well when buying a product or getting a loan, but it doesn’t translate well when you need real, complete estate planning that will work when you and your family need it most.
For more information about proper estate planning or to ask a specific questions, make sure to reach out to Andrew for guidance.
Andrew R. Kroll, MBA, J.D.