Should You Do Your Own Estate Plan?
It might seem like a no-brainer on the surface. Why hire an attorney to put your estate plan together? What could possibly be so difficult about committing your wishes to a piece of paper and signing it?
Using an attorney can be incredibly costly, and not everyone has the cash on hand to pay for professional help. Even a simple will can cost hundreds of dollars, and you can end up spending thousands if you want to get fancier and create a living trust. But there are several very sound reasons why you might not want to wing your estate plan on your own.
You’re not just paying someone to write up some documents for you when you hire a professional. You’re paying for advice so you know your estate plan has been done correctly. You can part with the money now…or your estate can spend hundreds or even thousands of dollars setting things right later if you make a mistake.
It’s Not Just About Having a Will
An estate plan doesn't involve just a last will and testament. It’s not even just a will and a living trust. A comprehensive estate plan prepares for other eventualities in addition to what happens to your property after your death.
If you have life insurance or retirement plans, these assets allow you to designate beneficiaries to inherit them directly. Otherwise, they’ll become part of your probate estate, and a more complicated probate means more time, effort, and money spent on settling your estate.
And what about your home? Do you own it with your spouse or someone else? How you hold title can affect whether it will be subject to probate when you die.
And what if you don’t die, but you become physically or mentally incapacitated to the point where you can no longer make important decisions on your own? You’ll need an advance directive, more commonly known as a living will, to express your wishes for healthcare. A healthcare power of attorney can allow someone you trust to make medical decisions for you.
You might also want to have a durable or springing power of attorney (POA), naming someone to take care of your personal business if a time comes when you can’t. A durable POA remains in effect if you should become incapacitated. A springing POA doesn’t go into effect unless and until you do. Creating a revocable living trust and naming a successor trustee can achieve the same result.
All these documents and others comprise a comprehensive estate plan. You’re not just scribbling out the terms of a will if you decide to create your estate plan yourself.
Do You Know the Law?
Do you know how to write all these documents if you decide to take care of things on your own?
Let’s say you get those beneficiary designations wrong on your insurance policy or retirement plans. The individuals you name might be unable to accept the proceeds because they’re ineligible for some reason…but you didn’t even know that those reasons existed under the law. You didn’t know that you could name a contingent beneficiary just in case the first person you named can’t inherit. Or maybe you were unaware that those designations override anything you say in your will about those same assets. This can result in a will contest if you name one person in the designation and someone else to inherit the asset if your will.
Unless you’re well versed in the estate laws in your state, paying for help with your plan can be worth every dime. Estate laws aren’t the same countrywide. Each state can have its own unique quirks, and legislation can be updated and changed at any time. Community property states have rules all their own.
One wrong or omitted word can create an effect you never intended, even with a simple will.
A probate court judge is going to have to accept your will as valid when you die, and this won't happen if you make a procedural or language mistake so it doesn't meet state law for a valid will. Your entire last will and testament will be thrown out, and it will be like you never bothered to write a will at all.
How Old Are You?
Depending on your personal circumstances, you might not need every single document that comprises a comprehensive estate plan. An estate planning lawyer can guide you, but you might want to keep some things in mind if you’re not planning on hiring one.
How old are you? This issue might be more pressing if you’re getting up in years, or it might be way down on your to-do list if you just graduated from college—particularly if your checking account and the secondhand furniture in your apartment is the sum total of all that you own. You might not need a will in this case, but you might want an advance directive if you’re not comfortable letting someone else, even your parent, make healthcare decisions for you. And you’ll want both an advance directive and a will, at a minimum, if you’re a Baby Boomer.
Do You Have Kids?
How old are your children? Is your current spouse their other parent, or were they born to a previous marriage? Blended families can create a quagmire of problems if you don’t understand or address them in advance. Your adult children could be disinherited if you die with an improperly drafted will in some states, and the court will decide who raises your minor children if you and their other parent are both deceased and you don't name a guardian in your will.
Disabled children have unique needs that can require a special kind of living trust so they don’t lose government benefits if they inherit from you, and you might not be able to create one of these on your own, at least not without making a critical mistake.
How Large Is Your Estate?
Another important consideration is the size of your estate. Will it be subject to estate taxes? That might not be likely in 2021, at least not at the federal level, because the estate tax exemption is a walloping $11.7 million. Only estates worth more than this are taxed on the balance. But this legislation could change in 2026, and some states have their own estate taxes with much lower thresholds. Do you know what they are? Do you live in one of them?
The more valuable and complicated your estate is, the more extensive your estate plan will have to be. In fact, you might not just need an attorney to advise you. A tax professional or financial advisor could be a good investment as well.
You Have Other Options
Assuming your estate isn’t teetering near a value of $11.7 million, and if you don’t have other unique concerns such as a blended family, you might consider taking a middle step between creating your own estate plan and hiring a lawyer to draft all those documents for you. This is the age of technology, after all.
Software programs that will help you draft some basic estate documents can be found all over the internet. LegalZoom is one of the best-known products, and it allows you the option of consulting with an attorney if you run into problems. Of course, this will cost you about $150, more than the basic program, but that’s still not as much as a lawyer will probably charge.
Quicken offers WillMaker Plus, provided by the legal website Nolo, and Nolo has an Estate Planning Bundle as well as a Living Trust 2021 program as well. WillMaker Plus has gotten some great reviews. It’s said to be comprehensive, yet easy to use—and it’s priced at less than $100. It doesn’t offer real “live” help, however, as LegalZoom does.
Other options include LawDepot and Rocket Lawyer.
Some of these programs will just let you draft a will, while others will help you put together an entire estate plan. Research and compare if you think this is an option that might work for you. Make sure the software you select is specific to your state.
If You Create a DIY Plan
If your software choice doesn’t give you access to an attorney, or if you decide to wing it on your own, you might want to consider asking a lawyer simply review what you’ve created so you know it’s right and that it achieves what you intend. You don’t have to pay a professional to actually prepare your documents. Many attorneys will be more than glad to review the documents you’ve created yourself for a more modest fee.
You might think that any estate plan is better than no estate plan, but that isn’t always true. Simple mistakes—even something as seemingly innocent as a typo—can result in awful unintended consequences.