The Risks of Do It Yourself Estate Planning: A Litigator’s Perspective

As a litigation attorney, I see many problems that arise when people decide they are going to do some or all of their estate planning on their own.  While it may occur for various reasons and people have justifications for why they thought it would work out, it is rarely a good idea and many times costs money in excess of any initial savings.  Below are some examples of situations where do-it-yourself estate planning issues often arise, and why it can be a bad idea.

1.    Documents May Not Be Valid
Drafting your own will is dangerous because it may not meet the requirements for a valid will.  You also may be attempting to devise property that is not the proper subject of a will, and you may be under the wrong impression you are validly conveying something that is not properly conveyed in the will.  Another problem is where someone drafts a will on their own and decides to either modify that will or write a new will, and there is not a proper modification or revocation of the prior will.

2.    Attempts to Change or Modify Previously Prepared Attorney Documents
People may feel that they see what the attorney drafted and just want to make some minor changes without the expense of going back to the attorney.  While this sounds logical, the legal rules for modifying documents are formal rules that must be followed and if not, your change may not be recognized.  It can also potentially affect the validity of the prior documents in ways which you may not have intended.  You also cannot simply make changes to a previously prepared will and expect that those changes are valid changes to the will.

3.    Verbal Modifications Attempts to Documents Prepared by Attorney
This is always a bad idea, especially in cases where people know their likely surviving family and beneficiaries do not get along.  Sometimes people try to get more specific with their verbal instructions, where the attorney’s documents do not cover a situation in detail.  If you have specifics that you know you want, such as specific funeral arrangements or specific personal property that you want to give certain people, you need to put this in writing, and you should talk to an attorney regarding how to document all such specifics.

4.    Not Updating Old or Out-of-State Documents
This is not an obvious problem to people because they feel they had an attorney prepare documents 30 years ago and they are all set.  The problem with old documents is that people may have died that you have named in the documents, or your relationship with those people may have changed.  The problem with out-of-state documents is that they may not entirely meet Florida requirements, and they may not have the same Florida interpretations as they had where they were prepared and executed.

5.    Trying to Do Some Work on Your Own
A frequent example in this category is when people have a trust drafted, but fail to fund it.  Perhaps they told their attorney they would do it themselves to save money, or perhaps they were not ready to fund it at the time it was drafted.  Whatever the reason, if a trust is not funded, it may as well not exist.  Your attorney will address this with you when drafting a trust and the most important thing is not to forget to deal with it if you decide to fund the trust on your own or intend to fund it at some future point.  It is often worth a follow up to your attorney to make sure all loose ends are tied up if they cannot be finalized at your initial meeting.  As noted above, it is often problematic when you attempt to add to or modify your attorney’s work on your own.

The Bottom Line
The bottom line is that I see people spending exponentially more money litigating matters that could have been prevented by having your estate planning attorney handle matters for you.  The old adage, “if it’s worth doing, it’s worth doing right” definitely applies to these circumstances.  Beyond the money considerations, it can save your family and friends the turmoil and stress of arguing over what your wishes were if your documents are not properly prepared and become the subject of litigation.

This Article does not constitute legal advice and may not be relied upon as such.  Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Salvatori, Wood, Buckel, Carmichael & Lottes
239.552.4100 | www.swbcl.com

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