By: William R. Remery, NAELA
Many people do their own estate planning with the use of inexpensive self-help computer programs and downloads from the internet. While many of those products are easy to use and may provide a good starting point for preparing an estate plan, a qualified estate planner should review the plan to make sure that it covers all contingencies and complies with all technical estate planning rules.
All too often I am called upon to defend a poorly worded or technically defective estate plan from attack by those who do not like the plan or incur court costs or taxes which could have been easily avoided with proper planning.
Problems can arise in any number of ways. Sometimes simple drafting errors leave a portion of the estate unaccounted for, such as where a specific item (like a specific car) is left to someone, but that item is later exchanged for a similar item, without specifying that it should go to the same person. Other times, a will or trust fails to provide for a contingency, such as where a primary beneficiary predeceases. Most pre-drafted forms include standard “legalese” which is intended to apply to most people, but which is not suitable for everyone.
Apart from the actual verbiage of the will or trust there are technical requirements for execution of the documents. In some states and foreign countries wills must be notarized. In California wills are not notarized, but require two independent witnesses. If a gift or bequest is made to a caregiver who is not related to the person making the gift is not valid unless it is accompanied by a “Certificate of Independent Review” in which an attorney verifies under penalty of perjury that the attorney discussed the gift with the person and determined that the gift is not the product of fraud, menace, duress, or undue influence. The requirement is designed to protect vulnerable elders from financial abuse by care givers. However, it also constitutes a trap for unwary estate planners who sincerely want to make a gift to a trusted friend and care giver, but do not know the technical requirements.
A third problem with self-drafted estate plans is the lack of credible witnesses to explain the circumstances of the drafting after the testator dies. Without an attorney or another independent witness to verify the circumstances under which the document was drafted, it may be difficult for the proponent of the will or trust to prove that the drafter was competent and was acting without pressure from someone else with the document was prepared.
Even with potential issues regarding drafting language, technical compliance and the need for independent witnesses, a computer generated form document that at least purports to carry out a person’s estate planning wishes is better than no plan at all. However, after thirty-three years of working with poorly drafted estate plans, I highly recommend that, if you do have a self- drafted estate plan, you have a qualified estate planner review that plan with you to make sure that it will carry out your wishes with a minimum of cost and aggravation to your survivors.