Why you should use an actual licensed lawyer for your estate plan instead of doing it yourself or using a non-lawyer service
Sometimes, estate-planning documents prepared by non-lawyers do not hold up in court when it is time to probate an estate or other use, and can result in a much higher total cost than the minimal up-front cost of a lawyer-prepared estate plan. Even when they hold up in court, poorly written documents may still have a much higher total cost than properly drafted documents.
There are other online document preparation services available that DO NOT use licensed lawyers to draft or review estate planning documents. These services come with risk, because the person drafting or reviewing documents may not know current law, or may not have the expertise to tailor a plan to your specific needs.
Also, the non-lawyer may be committing a crime by practicing law without a law license. The document preparation service may also be using a form that is not able to stand up in court or if it does stand up in court, it may not dispose of your property the way you want it to.
Also, many people forget that a will can do much more than just say “who gets what.” In particular, wills can create a trust in the event that your children are under the age of 18. These trusts are important because a minor can’t own property until she is 18.
If there is no trust to manage the property until the minor is 18 (or older), then your loved ones may have to have a costly and expensive guardianship lawsuit (several thousand dollars minimum in legal fees and yearly court hearing and reports thereafter) in order to have someone named guardian of the minor to take care of the property.
If you have special needs children you need a will that has what we call a supplemental needs trust to keep any property you give the child from disqualifying the child from services but still helping the child throughout the child’s life.
Also if you have children from a prior marriage, the complications from a bad will can effectively disinherit your children from the first marriage entirely, which may be even worse than having no will at all. Do you really want to trust a non-lawyer to diagnose your legal needs as well, make the correct recommendations, and then properly draft the documents?
The minimal up-front cost of using a lawyer instead of no lawyer should be thought of as a future gift to your loved ones. Probate (taking the will to court and winding up your affairs) and incapacity with proper planning in place is an easier, smoother, and likely less expensive process for your loved ones than with no planning or poor planning.
Form generating software or purchasing a form does not come with legal advice. You may have a specific legal need or issue that a lawyer would spot and address in a lawyer-drafted will.
A form can’t answer questions on how to fill itself. Further, most non lawyers have tendencies to either 1) incorrectly fill out legal forms, and or 2) incorrectly sign, witness, and get notarized legal documents. Using a lawyer may prevent these issues.
While lawyers do use forms in their practice, they have had years of schooling on selecting the proper form as a base and then tailoring that form to the specific client’s needs. Your lawyer understands all of the tricky language and the overall structure of the document. A law degree, after all, is primarily a reading and writing degree. And a good estate-planning lawyer won’t be using one form; he will picking and choosing between several, and having numerous different clauses to swap in and out for different legal needs and your desires.
An internet form likely won’t be tailored to your specific needs and will almost certainly be a one-size-fits-all form. It’s my opinion that there is no such thing as a one-size-fits-all will, regardless of your net worth. An internet form will may even be a completely invalid will and not able to be admitted to probate.
Many times non-lawyer resources simply don’t know the law or don’t bother to update their material as the law changes. For example, a popular online document preparation company’s website, as of January 1st, 2015, claimed that Texas had oral wills. In reality, Texas law stopped recognizing oral wills in 2007 when it revoked the law allowing oral wills. Thus, Texas does not have oral wills. More than seven years after the law changed the website still said that Texas has oral wills.
Many lawyers have also had to probate a non-law-firm created (i.e. improperly drafted) will; many times, these wills cost your loved ones extra attorney’s fees and time because the will was not properly drafted in the first place. If the estate is large enough to need tax planning, but no tax planning was done, a bad will or no will could cost your loved ones potentially millions in federal estate taxes. (In 2023, estate tax is 40% of the non-exempt amounts. Wow.)
It’s my opinion that you’ll have a better chance of putting together a valid, properly drafted will when working with a licensed and competent lawyer than working with a confusing form.
You wouldn’t pull your own wisdom teeth and you wouldn’t remove your own appendix; doing your own will and related legal paperwork is the legal equivalent of performing surgery on yourself. The cost of working with a lawyer is relatively small compared to the potential savings a valid properly drafted will provides, and even smaller compared to the potential costs that an improperly drafted or invalid will can cost your loved ones after you die.