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July 30, 2019
Derek Graham shares his thoughts after a conversation with his wife about people seeking legal advice online.
Recently my wife asked me out of the blue how much a Last Will & Testament (“Will”) costs. I was surprised she was asking so I told her what I tell every client - it is impossible to quote an estate plan cost until I know the scope of work. It would be like a surgeon explaining what surgery he/she was going to perform on a patient without having examined the patient or reviewed any x-rays, scans or diagnostic tests. My wife then explained she was asking because there was an ongoing thread on a "Moms in the Know" Facebook group about whether you need an attorney to write a Will for you, or whether you could just use a template through Google. My wife explained that someone on the thread was outspoken about their opinion that you do not need an attorney and that you could find a Will form online and save money.
Why hire an attorney? It is a fair question and one that we are happy to answer at Resch, Root, Philipps & Graham.
The simple answer is that it is always less expensive to hire an attorney to assist you with your estate plan.
Confused? Let me explain. Not hiring an attorney at the outset saves you money initially, maybe even a couple thousand dollars if you have a trust plan. But the savings expire very quickly when something goes wrong in your life. And when it comes to estate planning, the question is never IF you need an estate plan, but rather WHEN you need the estate plan. The total cost to you and your family will be tenfold what the cost of a good estate plan would have been.
Here are a couple of things that people who download Wills online do not realize:
· Wills must meet statutory requirements to be effective and valid. The requirements differ state to state and on multiple occasions we have represented clients whose Wills were not valid under Ohio law because they did not use an attorney when preparing the Will. Unfortunately, the person was deceased when this was discovered and the mess was left for loved ones to clean up on their behalf.
· Wills guarantee probate court involvement (and the cost of probate court always outweighs the cost of estate planning).
· Wills do not help you if something goes wrong while you are alive (i.e. you are in an accident). If you do not have the right documents in place, someone might need to become your guardian or conservator in order to manage your assets.
· Wills name Guardians for your children. But did you do it correctly?
Do you realize by just naming a guardian in a Will without a broader estate plan, you have left the person raising your children subject to extensive court oversight?
They will need court approval for every expenditure while the child is a minor and have to provide regular accountings to the probate court. Do you know how expensive that is? Do you know how much headache and hassle it causes your loved ones to put them through that process?
· The Golden Rule. To expand on the Guardianship bullet above, think of it this way. If you wake up tomorrow and find out a loved one has died and left a Will naming you as the guardian of their child, what would you have wanted them to do? Would you want them to have done the bare minimum which will result in you being mandated to get court approval for every expenditure, attend multiple court hearings, keep receipts of all expenses and spend hours sitting in an attorney’s conference room working on accountings and guardianship plans every year? Then once you raise their child to age 18 you must hand over whatever money is left to that child—regardless of maturity or readiness? Is that what you would want if serving as the guardian for someone else’s child? Wouldn’t you prefer a plan with privacy, flexibility, and minimal attorney involvement that allows you to distribute money to and for the child in a way that makes sense?
· Wills sacrifice all privacy. This may not bother you, but it would bother me. Not only does the Will become a public record, but everything that happens as a result of the Will is also a public record. Do you want the public to be able to read your Will, an inventory of your assets and an accounting of where each of those assets go? All counties are working toward having this information available for the public to view on the internet, and in many cases it is already accessible. If you have a minor child, do you want the public to have access to how much money your child’s guardian is allowed to spend on orthodontics, camps, education and every other area of their life?
Of course you can download a free Will off the internet; the real question is can you afford the total cost to you and your family in the long run?
PS, it is also not a good idea to rely on legal advice from Facebook posts.
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