As the use of AI and cloud-based platforms have become widespread, so have “DIY” Last Wills and Testaments (LWTs). There is no denying the convenience of drafting your LWT from home, and the idea of saving a few dollars in hiring a lawyer is tempting, however, there are a multitude of potential problems that stem from DIY LWTs.
First, no matter how user-friendly the software, there’s no substitute for a discussion with an experienced attorney who knows what questions to ask in building an estate plan. Being able to tailor a plan to your personal circumstances is imperative. For instance, DIY software may not consider your (or your beneficiaries’) history of bankruptcy, divorce, children from prior marriages, or your relationships with and among your children and other beneficiaries, all of which affects how your plan should be drafted. Likewise, if you are prompted to enter the size of your estate, and you respond that your gross estate is $6M, then the software may (accurately) ascertain that you do not have a taxable estate—but will the software account for your age, future earning potential, and the likelihood that the size of your estate may double or triple over the balance of your lifetime? If not, your estate may end up paying millions to the government when these funds could have been passed on to your family without any estate taxes.
Second, the DIY forms may not be valid (or validly executed) as each state has different laws. In New York, it is the LWT proponent’s burden to demonstrate, by a fair preponderance of the evidence, that the LWT was properly executed in accordance with state law. Often, when a layperson prepares their own LWT, the requisite execution formalities are not followed, which is problematic if that LWT is presented for probate. However, when an attorney drafts and supervises the execution of a LWT, the burden of proof is shifted, such that there is a presumption of due execution that anyone seeking to contest the LWT must rebut.
Third, individuals may believe that all they need is a simple LWT, but if their objectives include protecting assets from the cost of long-term care, estate tax planning, or avoiding complicated family dynamics, they may be better served by a trust. This determination only comes after a collaborative conversation about one’s goals and the options available.
There have been numerous lawsuits against DIY legal platforms alleging that they engage in unauthorized practice of law and deceptive business practices. Clients may end up spending far more time and money to correct issues that these generic services created in the first place. In contrast, establishing a relationship with an attorney who looks out for your best interests and keeps you informed of changing laws, and whom you can reach out to as the circumstances of your life change, is invaluable.
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