August 29, 2011
Writing a Will
The second step when writing a will, trust or other estate planning document, after making the initial determination to in fact write one, is to select the person who will be entrusted with this responsibility. There are a number of options a person has at their disposal. The following is a brief synopsis of those options.
Yes, you can be your own lawyer and write your own will or trust. There is no legal requirement that you be licensed to prepare your own legal documents. A person need only be licensed if they wish to represent others. The rationale behind this law is to protect the unwary consumer from an unscrupulous faux attorney who has not undertaken the required education and training necessary to be licensed.
Your local library is filled with books explaining the laws behind estate planning. Additionally, many of these books have pre-printed forms which you can use as a template. For example, Nolo Press has printed many books on wills and trusts that are perfectly suitable for individuals of modest means.
The obvious benefit in writing your own will or trust is that the expense is basically your time. You do not have to pay somebody for their services. Furthermore, you do not have to go through the trouble of conveying your wishes to a third-party and having them then memorialize your wishes. This could potentially lead to your testamentary wishes not being honored because your correspondence with the third-party might be misconstrued or misunderstood.
The downside to this arrangement is summed up by this paraphrased statement “the man who represents himself will have a fool for a client.”
Paralegal/Legal Document Assistant
California law describes a paralegal as “a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California.” Bus & P C § 6450(a).
California describes a legal document assistant as a person “who provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter, or who holds himself or herself out as someone who offers that service or has that authority.” Bus & P C § 6400(c). For reference, Legalzoom is a legal document assistant.
The key distinction here is the fact that a paralegal is not permitted to independently provide legal services to consumers, whereas a legal document assistant is permitted to do so. However, neither may provide legal advice to consumers. Bus & P C § 6450(b)(1); Bus & P C § 6400(g). Hence, if a person was looking to write a will, they could enlist the services of a LDA but not an independent paralegal. If they did want to hire a paralegal, the paralegal would be under the umbrella of a California attorney or law firm.
The benefit in using a LDA is that the individual can select the appropriate forms for the consumer to fill out. For example, a LDA can provide a consumer with the correct form to complete their will. Moreover, the expense of a LDA to write a will or trust is usually not more than a few hundred dollars.
The principal drawback of a LDA is that the individual is barred from dispensing legal advice. The consumer is basically forced to self-educate themselves on the topic. Granted the LDA will direct the consumer towards the right path, by providing the correct form, but that is where their “advice” ends. If the consumer has a question about what is the difference between a rata or pro-rate distribution in a will or the legal significance of California’s anti-lapse statute, the LDA is prohibited from answering such questions.
The Internet is the largest commercial zone ever created. A person residing in the United States can easily purchase kiwis from New Zealand, a television from Japan, a car from Germany, a carpet from Jordan, wine from France, etc. Not surprisingly then, there are numerous websites where consumers can purchase wills and trusts templates. These sites charge a nominal fee, $30 for example, to print out a trust or will, and the consumer then fills it out.
The benefit for purchasing an online will or trust is again the price. The cost is often insignificant. Furthermore, there is more choice for consumers. In contracts with a LDA or self-education, which limits a consumer to a geographical region essentially, the Internet is home to countless sites that do not restrict access on the account of a person’s location. All that is needed to contact these sites is an Internet connection.
Like the previously mentioned methods, online forms have a host of drawbacks. First, these forms are often produced for “use” in all 50 states. Often times each state has their particularities for writing a will or trust. While the same law on wills and trusts is largely the same in each state, hold Louisiana as their legal system is based on the Napoleonic Code, it is impossible to state with certainty that a will or trust that is legal in Kentucky is legal in California. Second, the consumer still needs to engage in self-education again. While the website might provide useful information to the consumer, he or she will not be able to interact with somebody. If the person has any questions, the answer will be found through their own research, which might be flawed, rather a third-party individual.
I have personally handled matters for clients who embarked this route, namely the purchase of a will or trust online. Every single document was either incorrectly executed or had conflicting provisions. The result was that each of these documents was legally deficient. Thus, the consumer had basically purchased a problem instead of a solution.
A California attorney is somebody who, among other accomplishments, has passed the California bar examination, received a determination of good moral character and passed an ethics exam. Bus & P C § 6060. An attorney is obviously the most qualified person to write a will or a trust for a consumer. An attorney has the knowledge of the legalities behind wills and trusts, can advise on such and most importantly can draft documents that comport with these legalities. The main drawback for hiring an attorney is the cost.
Many consumers cringe when hearing the costs to hire an attorney, $300 per hour or $11,000 to administer a trust. This is a legitimate concern because price is often the motivating factor when purchasing a service. If a person has the option of hiring the services of somebody for $30 total or $300 an hour, this variable will weigh heavily during the decision-making process. Still, an under-appreciated aspect when deciding to hire an attorney to write a will or trust is not the upfront cost but the long-term cost. I equate this with the economics term “false economy.”
False economy basically means that the short-term savings realized by initially retaining an inexpensive good or service are ultimately eclipsed by the long-term costs due to the upfront shoddy good or service. For example, a few years ago I purchased the least expensive toaster from Target rather than spend a little extra on a brand that I had purchased before. Sure enough, the toaster malfunctioned shortly after the purchase and I was forced to buy another toaster. The expense of these two toasters easily eclipsed the cost of the toaster I originally thought about purchasing but ultimately declined. Similarly, in the context of wills and trusts, very often a consumer has made their own will, purchased an online will or hired a LDA to provide a template will. At the time, the consumer is under the impression that everything is alright because there is no immediacy for writing a will, it becomes effective only upon death. Only after their passing away do the will or trust beneficiaries get the chance to review the document and quite typically the document will be flawed.
For instance, the will does not have enough witnesses, the trust does not clearly define the inheritance of each beneficiary or the trust has not been funded, are all common pitfalls with non-attorney drafted documents. The beneficiaries are then relegated to starting from a negative position because they are given the burden of piecing together an incoherent document. The reason being is that California law clearly defines who will inherit a decedent’s estate if there is no will or trust, intestate succession. Whereas in the case of incoherent documents, California law does spell out a process for handling such but it is much more labor intensive and expensive, namely the time and cost of an attorney, than intestate succession. Ultimately a consumer is usually much better served to hire an attorney because the eventual costs are often less for an attorney than for anybody else. Yes, I know that sounds counter-intuitive but it is often true.
The few times in which I think an attorney’s services for a will or trust is not required is when a consumer is able to transfer their entire estate through non-probate transfers, provided no real property is involved.