Will in a Box: The Dangers of Estate Planning Software Programs

 

                I recently came across an Article written by TODD C. RATNER, Esq., an attorney practicing in Springfield, Massachusetts. I am often asked whether or not the online Estate Planning software programs are an easy and cost efficient way for the layperson to prepare their own Estate Plans.  If you are one of those individuals considering either preparing your own estate plan online, or purchasing software to prepare it at home, I urgently advise you to read Attorney Ratner’s Article. I assure you it will be time well spent.

 

 

WILL IN A BOX: THE DANGERS OF ESTATE PLANNING

SOFTWARE PROGRAMS

 

By: Todd, C. Ratner, Esq.

             "The recent sophistication of software has contributed to an increase in homegrown estate planning. These mass-marketers of legal services misinform people into thinking that they are saving money and that they are receiving sound legal advice. This is simply not true.

            As an estate planning attorney, I felt an obligation to learn more about these mass-marketers of legal services. As such, I visited the Web sites and researched the software applications of several well-known estate planning services. One of them called itself a ‘Legal Documentation Service.’ The service purported to “save time and money on common legal matters … and create reliable legal documents from your home or office.” Another purported to “help protect your family and your assets, and save on legal fees.”

The process of preparing the documents among these companies was similar. Each required you to answer a series of questions, either online or via their software package, and your documents will be prepared either instantaneously or within 48 hours. However, one software-based company suggested that you read an accompanying book, which was hundreds of pages in length. Although, you may not need to read the entire book, I do not understand how the public can decipher which parts to skip over and which to read thoroughly with only a basic understanding of estate planning. This seems like a hefty burden on the consumer and not quite the time-saver that the company publicizes.

Intrigued, I moved forward. I started answering the will questionnaires of several services, and due to my own thorough understanding of the intricacies of estate planning, I was perplexed that my options were limited on these questionnaires. Among other issues, I specifically wanted to better understand my options regarding the inheritance distribution alternatives for my children:

 ■Could the distribution ages be staggered so that the children would not receive a windfall at age 18?

 ■Could I separate principal and interest?

 ■Could my children approach the trustee for health or educational needs prior to the set distribution age?

So, I called the telephone number provided on one of the Web sites, and I spoke to a young woman who was very pleasant. But when I asked if she could provide me with examples of how I could distribute my assets to my children in the event that I survive my spouse, she simply stated, “You can distribute any way you wish.” Although, this may be somewhat accurate, it did not truly answer my inquiry. I then asked if she was a practicing attorney, and she answered that she was not.

This was just the first of many questions that I had about the questionnaire. Another question regarded whether or not I was required to state my desire for organ donation and cremation in my will instead of my health care proxy. The representative answered that I am only able to insert this information into the will. Many attorneys suggest that this language be included in one’s health care proxy because that document is usually reviewed prior to the will. As such, the will may be read by your loved ones well after your body has been buried, and therefore, your intent will not be adhered to. But several of these companies do not allow this flexibility.

Additionally, with many services, nothing prevented me from including a disabled child, who would be receiving governmental assistance, as a beneficiary under the will. As experienced estate planners know, the receipt of assets by a disabled individual on governmental assistance most often disqualifies them from governmental benefits.Tne company uses the tag line: “We Put the Law on Your Side,” a claim that a law firm cannot make under the marketing rules that govern the legal profession. Nevertheless, the company claims to be a leading legal Web site. Huh? The people that work on the documents are not attorneys and they cannot, by law, give legal advice.

To further illustrate this point, one Texas court went so far as to declare that a software-based mass-marketer of legal documents constituted the unauthorized practice of law because its process was too interactive and sophisticated. Most companies do a review, making sure that all answers are completed in the questionnaire and that all spelling is correct. These minor tasks are akin to a very narrow role as a proof-reader of the consumer’s data entries. This has to be limited by law, since no attorney is involved in this process. These companies hope that you will never read their ‘disclaimer’ or ‘terms of use disclosure.’ One such disclaimer provides that they are not providing any legal advice, that their documents may not work in your situation, that their documents may not be valid in your state, and that you agree to hold them harmless for any consequences resulting from your choice to use their services rather than seeking the advice of an attorney. Another disclaimer provides that “this product is not a substitute for … an attorney” and “we’ve done our best … but that’s not the same as personalized legal advice” and “if you want help understanding how the law applies to your particular circumstances, or deciding which estate planning documents are best for you and your family, you should consider seeing a qualified attorney.” How can this provide the end-user with the confidence that their estate planning documents are both legally binding and appropriate to their particular situation?

Probate law is strict and unforgiving. Good estate planning attorneys work diligently to keep abreast of changes in the law through memberships in such organizations as the National Academy of Elder Law Attorneys Inc., the Estate Planning Council of Hampden County, and through extensive, continuous reading and legal research. Creating your own legal documents provides a false sense of security, and the inaccuracies are usually only discovered when it is too late to do anything about them.

 

Most people need the perspective that an impartial, experienced estate planning attorney provides. You are playing with fire if you engage the services of these companies for the following reasons:

 ■These programs largely disregard specific laws that can dramatically affect your estate;

 ■Your unique issues and circumstances can only be flushed out and addressed through consultation with an attorney; and

 ■You are not securing the experience and the knowledge of an attorney trained to handle the specific circumstances of your estate.

 

Another inaccuracy that I found regarded the fee structure. One company claims that: “With [the company’s] lawyer-free service you can save up to 85% off the rates an attorney would charge for the same procedure.” Upon a review of what the company claimed to be an estimated fee that an attorney would charge for the preparation of the will, I was flabbergasted. I can only speak for my firm, but our fee is approximately 4.5 times less than the estimated fee quoted on the Web site.

Moreover, one company suggests that its service is equivalent to the services of an attorney, which is undoubtedly inaccurate as outlined above. In fact, a Colorado attorney boasts that he loves these online and software companies because he has been retained by individuals to correct mistakes included in documents prepared through one of these companies, and he has earned more than what he would have if he performed the work in the first place.

 

In conclusion, the subjects that typically matter the most to you; your health, your family, and your finances warrant the attention of an experienced, trained professional who will put their bar license and malpractice insurance on the line to provide you with the advise, counsel, opinions, and recommendations that are essential to drafting a proper estate plan. People generally create estate plans for the peace of mind that they provide. The question is whether or not a software program and/or an unlicensed, uninsured and largely unregulated document preparer can provide you with the peace of mind that your estate plan was done appropriately and addresses your specific needs."

 

 

Thank you Attorney Ratner for preparing this article.

 

 

To Sue Or Not To Sue

To Sue or Not to Sue

If you are a business owner or even in your personal matters you have probably encountered a situation where you have tried to decide whether or not you should sue someone for something that they did to you. When you are considering this question there are actually two separate questions you really need to ask.

Does Bringing Suit Make Financial Sense?

The first thing to consider when deciding to bring a suit is whether or not filing a lawsuit makes financial sense. When considering this you need to understand the potential costs of litigation. Despite what you see on television a civil lawsuit does not wrap it self up neatly in a one hour period of time. You also do not get to court immediately after filing.

The Rules of Court provide a process that every case must go through before a trial. This process will most certainly takes months and it is not uncommon for a civil case to go well beyond a year before a trial ever occurs. During the process you will be involved in drafting initial court papers, investigation of the case (which is called discovery), as well as potential motions and other legal hearings; all before you ever have a trial. Given the amount of work involved you can understand how this can get very expensive. It is not uncommon for civil cases to costs tens of thousands of dollars. So obviously the motion important decision is whether proceeding with your case makes financial sense.

You do have some options if your case does not warrant this level of financial commitment. Most if not all states have a small claims court where smaller disputes can be resolved. In Massachusetts all lawsuits under $7,000.00 are eligible for small claims court. The process for small claims court more resembles Judge Judy or the People Court than the regular process. You usually get a hearing scheduled quickly where you can present evidence to the Judge. In Massachusetts and most other States, there are no juries in small claims court, and the process is a lot more, shall we say, user friendly.

Given these costs, what you as the potential plaintiff need to consider is the potential judgment you receive going to be enough to justify the cost of the litigation. If so then you next must consider the legal basis for the case.

Does My Claim Have Legal Merit?

The second question to ask is whether your potential claim has legal merit. This determination is very fact specific as each case is different. In order to properly make this decision it is often wise to consult with an attorney who has knowledge of the area of the law.

However, you should not expect the attorney to be able to provide an immediate, easy answer. As stated, this determination is often fact specific so the attorney will often have to review documents and discuss the facts with you and/or other witnesses.

After the facts are determined it is also likely the attorney will need to conduct research on existing statutes or other court decisions to determine whether or not the claim is valid. This is an important part of determining whether or not the claim has merit. Without this research the attorney can not provide quality legal advice.

If "Yes", then what?

If the answer to both of these questions is yes than it probably makes sense for you to file your lawsuit and pursue the case. However, there is one final caveat, you should also make sure that the person who are suing has assets to satisfy the debt. Even if you are successful in the case you will only get a piece of paper that says someone owes you money. You still must collect the money from the Defendant.  This is also a factor to be considered prior to deciding to file suit.

Does the Defendant have any assets which may be used to satisfy any judgment against them? Or, is the Defendant what we call "judgment proof" -- meaning, after you have "won" your case against them, they have no assets or income to satisfy the judgment? If that is the case,  then, although, as in Massachusetts, your judgment is good for 20 years, it is still only as good as the paper it is written on until assets are available to satisfy it.

This is where the sound, practical guidance of an experienced trial attorney will serve you well.  I have successfully managed suck matters for 18+ years. If you or anyone you know finds themselves in a position of deciding whether or not to sue,  my office is available 24/7 to provide assistance.