In the age of the internet, there is a growing trend amongst the American populace who decide they need a Will to avoid the cost of a lawyer and use a legal services website like Legal Zoom® or use some free Will form found on the internet. However, there are many dynamics that go into estate planning beyond executing a “simple” Will. First, you may have family dynamics or complex assets such as a closely-held business that require something more than a “simple” Will. In fact, a Will may not even be the best vehicle to address some of these issues and a prenuptial agreement or a revocable living trust may need to be considered. There are also various assets that are generally not governed by the terms of a Will at all, such as life insurance, joint bank accounts and retirement accounts. Your DIY Will form may be perfect in every respect but it has generally no authority over these types of assets.
Moreover, estate planning generally involves more than planning for death but also planning for incapacity. The documents used to address incapacity are commonly referred to as advance directives, which generally include a power of attorney, a health care proxy and a living will. These are also popular with the DIY form websites but you may need an attorney to explain to you the legal significance and consequences of signing these types of documents.
Another dynamic to estate planning is exploring whether you may need to do some elder law/disability planning, which entails not only Wills, trusts and advance directives but looking into longterm care insurance and/or Medicaid eligibility and planning.
The purpose of this blog is not to convince the reader to avoid using DIY websites such as Legal Zoom®. What you should consider, however, is whether your particular personal and financial situation is complex enough to require consulting with an attorney. This is really no different than any other decisions we all make in life – I do not go to the doctor every time I have a simple common cold but I certainly go to the doctor if I break my arm. I can change the oil on my automobile but I prefer the auto shop to do it because they have better tools than I do and I am reasonably certain they will do it correctly.
So if you come to the decision that you need a “simple” Will, you should also give serious consideration if your particular situation is really all that simple before you attempt to do it yourself or use a DIY legal services website.