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.
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.
