There comes a point in every person’s life where it is appropriate and prudent to begin planning for the post death division of property and assets. It is necessary to anticipate and plan for the quagmire that is probate. For many facing the task of planning their estate, the mere idea of paying an estate planning attorney can be painful and many simply choose to forego such a task by using cheap or free online forms. While choosing the easy way out may save you money now, it will cost your estate significantly more in the future. The pitfalls of cheap online wills and trusts writing programs are many.
The premise is simple enough. You want a means of distributing your property after your demise but you do not want to pay more than necessary. The problem is dead serious. On their face, online wills and trust programs appear to be a bargain. You can prepare your own will or create a trust for less than $20.00, a tiny fraction of the cost of a good estate planning attorney. Unfortunately for your family though, the inherent inadequacies of such services are not discovered until after your death. Any remaining heirs will be forced to pick up the remains of your estate and force it through probate, taking substantial amounts of both time and money. The money spent today on a good estate planner will save your estate exponentially more in the future.
Numerous amounts of problems arise when deciding to use online wills and trusts services. Most often these services do not take into account specific state law regarding the administration of probate or trusts. Only an attorney in your state can effectively advise you regarding the various jurisdictional issues that may affect many of your decisions regarding your estate. Many states have varying requirements regarding the number of witnesses that must attest to the creation of a will. Failure to comply with state requirements regarding the order of attestation and witnesses will sometimes lead a court to completely invalidate your will as a means to distribute wealth and property. See, Stevens v. Casdorph, 508 S.E.2d 610 (1998). By refusing to extend the Doctrine of Substantial Compliance, many state courts, like the Casdorph court, have stressed the importance of proper will execution. Online will services do not take into account the varying requirements among states. Only a skilled estate planning attorney can advise you regarding the proper methods to ensure that your will is upheld during probate. Failure to comply with these requirements will force all property through intestacy, which is where the state decides who gets what. Moreover, intestacy is not something that the online services will tell you about. Additionally, the plain meaning rule, which instructs court’s to look only at the plain meaning of words contained in the will, stresses the importance of obtaining professional advice. Using an incorrect word or clause can dramatically alter the effect of the will, invalidating the very purpose of its creation.
Trusts are often used as a tool to avoid the probate system completely, and many online services use this very idea as a marketing tool. There are many kinds of trusts used in estate planning (i.e. revocable, irrevocable, discretionary, spendthrifts, marital, special needs and testamentary trusts, to name a few) and only an experienced attorney has the knowledge and ability to advise you regarding the proper form of trust for your desired purpose. In addition, online services do not address the various issues faced when creating a trust. As trustee, beneficiary or settlor, there are various rights and obligations associated with each party. Violation of any imposed obligation or duty can serve to completely invalidate the trust document itself. In order to properly address your needs, an estate planning attorney considers all relevant factors and will recommend the best option for you.
Online services fail take into account all available means of wealth transfers and do not begin to address all pertinent issues, such as tax impacts, ease of administration, imposed rights and duties and the potential pitfalls. Only a qualified attorney can ensure that your estate does not find itself stuck in the murky and troublesome world of probate and intestacy. Wise planning now could spare your family the unpleasant pain of probate in the future.