Not a “Do-It-Yourself” Project

~ by Alison Smith Piasecki

Have you ever been tempted to try one of those “do-it-yourself” estate planning kits advertised by on-line companies or sold at the large office-supply chain stores?

If so, keep in mind that old saying, “Penny wise, pound foolish.” The legal fees you save by preparing the documents yourself (with or without the aid of a kit) may be quickly eclipsed by the legal fees your family may have to spend after your death to fix the problems such DIY documents can create.

DIY estate planning horror stories abound. Consider the case of Charles Kuralt, long-time CBS anchorman and news correspondent. Shortly before his death in 1997, Kuralt wrote a letter to his mistress of almost 30 years promising to leave her the 90-acre Montana property where they had spent time together. After Kuralt’s death, his mistress and his family spent six years in court (and an untold amount of legal fees) arguing over whether the letter constituted a valid amendment to his existing will or whether it simply represented a promise to revise his will. The court never ruled on the issue, but did award the mistress the Montana property (which was then valued at $600,000) and left the Kuralt family responsible for the estate taxes.

Although the Kuralt case didn’t involve the use of a DIY kit or an online service, there are plenty of cases where such a kit or service was used – with equally dire results. Consider the case of the man who tried to disinherit his ne’er-do-well son. He purchased a DIY will kit from a chain store and diligently followed the prompts asking him to list his assets and designate the recipients, none of whom were the ne’er-do-well son. The man forgot to list some telephone stocks which had been acquired many years before and which he may have thought had minimal value. Unfortunately, the will produced by the kit did not include a “residuary” clause which disposes of any property not specifically listed. As a result, the telephone stocks – now worth more than $1.5 million through a series of mergers and stock splits – passed via the laws of intestacy and the ne’er-do-well son, who was supposed to receive nothing, ended up with about $400,000, which he frittered away within a year.

DIY errors can be as simple as failing to “fill in the blanks” properly. For example, there is the case of the intrepid but careless DIY’er who ended up leaving $200,000 to “insert name here” rather than the intended recipient. Typographical errors can also pose a problem. One man left “$200.000 to my sister” – the issue of whether a comma or a decimal point was intended became a point of controversy to be resolved by the court. Unfortunately, as with most DIY estate planning cases, the person who could definitively settle the issue was deceased.

Even well-educated, financially savvy people can be tripped up by DIY estate planning documents. Gregory Luce, a lawyer and Practice Development Director for the Minnesota State Bar, decided to experiment with an online DIY will kit, a process he documented on his “practice blawg”. At the time of the experiment, Greg (who is not an estate planning attorney) was married with two children, one of whom was from a prior marriage. Greg posted a video of the process on his blog. He also indicated that he was surprisingly impressed by the documents which were produced – until he posted a copy of the will on his blog seeking comments from experienced estate planning attorneys. Among the issues flagged by those who commented were the following: The will failed to include a “self-proving affidavit,” which meant that the witnesses to the will would have to be located and would have to testify as to the validity of the will after his death; the will did not include children born or adopted after the date of the will; and perhaps most troubling, the will left everything outright to his second wife, which meant that the second wife potentially could disinherit the child of his prior marriage – something which the DIY kit failed to “flag” for Mr. Luce’s consideration.

It is important to note that the providers of DIY kits and online services typically include disclaimers with their products that state that they are not law firms and that their employees are not acting as attorneys. Under the laws of most states, they cannot review your answers for legal sufficiency, nor can they draw legal conclusions, provide legal advice, or apply the law to your particular personal and financial situation.

Online services and DIY kits that purport to supply a legal product but then deny that they are providing legal advice are a poor substitute for an experienced estate planning attorney who can evaluate your particular personal and financial circumstances and provide advice based on those circumstances and the laws in effect in your specific jurisdiction.

Alison Smith Piasecki is an attorney at Drohan Tocchio & Morgan PC, which is located on Derby Street in Hingham. The firm specializes in all forms of law, including real estate, corporate law, civil litigation, estate planning, and family law. For details, go to www.dtm-law.com.