With greater numbers of baby boomers approaching their retirement years, Americans have a heightened awareness regarding the importance of putting their affairs in order. One need only Google the search phrase “do-it-yourself will kits” to know that marketers of online legal forms are eager to fill the void.
As more consumers begin to dabble in drafting their own legal documents, estate planners and financial advisors should advise their clients about the pitfalls of do-it-yourself estate planning. While some of your clients may have convinced themselves that their DIY legal documents will pass scrutiny in the probate courts once they’re gone, it’s often not the case.
Having practiced as a probate attorney for a number of years, I’ve seen my share of poorly drafted legal documents. As a result, I often find myself representing heirs, executors, administrators and trustees in contested wills and in other expensive probate litigation proceedings.
In a high percentage of the probate cases that I’ve handled, I come away reflecting on how the heirs could have been spared the anguish, delay and expense of probate litigation had the deceased individual (testator) sought the services of qualified legal counsel.
An effective way for professional advisors to recommend a cautious approach for DIY clients is to share with them real-life stories, such as the following case I encountered.
Litigation Over Mom’s DIY Will
This case involved one of my Florida clients, whose mother created her own typewritten will. The mother had four adult children from two different husbands, but chose not to mention my client’s two half-siblings in the will. Having been named in the will as personal representative for the estate, my client became the target of a lawsuit by her half-siblings who alleged undue influence, among other claims.
In addition to failing to mention the two children by a previous marriage, the mother’s will left out a residuary clause, which provides for the disposition of what’s remaining in the estate after specific devises have been made. While the will mentions a minor grandchild as a beneficiary, there were no trust provisions established to ensure that the inheritance would be properly managed for the benefit of the child until the child reached legal age.
In short, the will was poorly drafted and the cost to litigate the estate was nearly $22,000. Perhaps more important than the financial diminution of the estate was the emotional trauma my client experienced, knowing that her half-siblings would sue her while she was still in the process of grieving her mother’s loss.
When heirs are disinherited or given unequal shares in a will, family disputes and litigation often occur. Such situations require the advice of qualified legal counsel and can’t be resolved with DIY wills.
In the above case, my client’s mother didn’t have the legal expertise to know that Florida is one of approximately 18 states that have adopted (either in its entirety or in part) the Uniform Probate Code (UPC), which addresses lines of succession (that is, who inherits what and in what order, if there’s no will). The UPC, in addition to simplifying and standardizing the processes and rules of distributing property, sets forth provisions that are intended to protect spouses and children who are entitled to some minimum amount of property – even if the testator (such as the mother in the case above) fails to mention them as beneficiaries in the will.
Penny Wise, Pound Foolish
Professional advisors should remind clients that well-drafted estate-planning documents are a “gift” to one’s children. Preserving one’s legacy and final wishes in the precise manner of one’s choosing shouldn’t be risked with the use of DIY forms. In many cases, it will cost their heirs more in the long run than it would had the testator sought the expertise of legal counsel to either look over their documents or create them altogether.
While legal professionals can’t provide clients with a guarantee that there won’t be a lawsuit when it pertains to disinherited siblings, unequal shares or other complex family dynamics, the likelihood of a successful legal challenge can be greatly reduced with carefully worded legal documents.