Penny-wise and Pound-foolish: the Dangers of Do-it-yourself Estate Planning

Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.

Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.

There is a popular book by Andrew Keen, titled “Cult of the Amateur,” that talks about the recent increase in do-it-yourself activity by consumers who are trying to save money. From bloggers who think they are journalists to DIY lawyers (non-lawyers doing their own legal work), people may fall short and miss the mark when they act without experience and wisdom.

Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.

Some legal procedures are very easy and straightforward, while others are more complex. The problem many people face, unknowingly, is the possibility of “unknown unknowns,” meaning they are not aware of the unknown conditions or events that could seriously affect the plan they have laid out. Experienced attorneys, however, are trained and skilled in knowing a general list of contingent events and outcomes and that experience value is significant.

Do-it-yourself estate planning can go wrong and significantly harm families.

Courts will invalidate improperly executed estate planning documents, leaving named beneficiaries in the dust. If a court invalidates a will, the heirs at law of the decedent will become the beneficiaries of the estate instead of the named beneficiaries, and those two lists of individuals may be vastly different and not at all what the testator had in mind.

The Florida Supreme Court highlights an example of a bad outcome for a DIY estate planner[i]. Ms. Ann Aldrich (“Ann”), prepared her own will using an “E-Z Legal Form.” Ann filled out the blanks on the standard form, with the intention that certain property and assets go to her sister, Mary Jane.  She further provided that in the event of Mary Jane’s death, she wished that the property would instead pass to her brother, James Aldrich.   Ann then created a hand-written amendment years later after Mary Jane’s death that reiterated Ann wanted her entire estate to pass to James.   Upon Ann’s passing, the amendment was found to be invalid due to improper execution.

The court will not assume what the testator meant to do when writing their own will.

Ann’s will was very specific regarding the assets she gave to Mary Jane, and then to James. What Ann’s will did not address or include, however, was a “residuary clause” to deal with any later-acquired assets.  As a result, James only received those specifically named assets in Ann’s will and the rest of her estate, which was not mentioned specifically or through a residuary clause, passed to her heirs at law.  This does not appear what Ann wanted given that she specifically provided for only two named individuals when she originally drafted her Will and given her amendment, which unequivocally contained her intentions.

Had Ann spent the time and money to hire an experienced estate-planning lawyer, her will could have easily included the proper legal language to include any assets and property received from other sources after the date the will was drafted, and her intended beneficiaries would have received those funds. This is an excellent example of what can happen with the DIY estate planner relies on a form out of a box, a form that does not give legal advice, a form that doesn’t ask Ann about all the potential outcomes.

Justice Pariente thought it necessary to include the following language in the opinion that was issued in the case arising out of Ann Aldrich’s estate:

I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.  As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees – the precise results the testator sought to avoid in the first place.”

Take the proper steps to protect yourself and your family and employ an experienced attorney when you care about the disposition of your assets and property when you pass.

In estate planning, the testator who writes their own will is no longer available to clarify their intentions. All the courts can do is rely on the law and what is written when DIY estate planning forms are used. To ensure your will follows the law and is properly written, it is highly recommended you employ the assistance of an experienced estate planning attorney.

Attorney Jennifer Guimond-Quigley is experienced with drafting Illinois-based Wills and Trusts, and (when necessary) litigating to enforce or challenge estate planning documents. To learn more, please visit the firm’s website, Facebook and LinkedIn sites. Jennifer frequently shares resources and tips for Chicago area families who work hard to preserve that which they have worked a lifetime to achieve and ensure their wishes are carried through effectively.

[i] Supreme Court of Florida, Aldrich v. Basile, No. SC11-2147, Mar. 27, 2014.