Estate planning: Should you DIY or leave it to a pro?

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Need to know how to do something? There’s probably an app or a YouTube video to help you with step-by-step instructions. With these tools, you might try a new painting technique or a minor home repair, but odds are you probably wouldn’t try to replace your roof—unless you’re a roofer. So, would you try to prepare your own will, trust or powers of attorney without hiring a lawyer?

You might say yes. But, can you be sure that your DIY documents will hold up in court? Would they pass your assets and personal property to your chosen heirs in an orderly fashion, while also minimizing any income, estate or gift taxes?

The list of DIY legal providers continues to grow, including those that offer do-it-yourself estate plans. Although the forms that these sources provide may cost less than working with an attorney, the cost to your family could be much higher. Mistakes made in the drafting of such important documents can have devastating effects from family arguments to expensive litigation.

Do you need the experience of an attorney?

Estate planning involves more than producing documents. It’s impossible to know, without a legal education and experience, what planning opportunities are available and how to make the terms of your documents fit the need. Even the DIY sources state that they provide forms, but not legal advice and that the service is not a substitute for retaining an attorney.

Without this experience, the documents you create could be invalid, ineffective, or contain legal language having consequences you never intended. You might not know this during your lifetime, but at your death your loved ones will find out and may suffer the consequences of the mistakes.
Courts can and have historically looked beyond the document itself to determine whether the maker had capacity, and/or to determine whether the instrument was executed pursuant to the maker’s own free will (with understanding) and in accordance with the applicable state statute. An attorney can help assure that this is true and document it. In cases where a court finds otherwise, the court is empowered to take charge of a person’s personal and financial affairs, sometimes at a significant emotional and administrative cost to the family. The court is also empowered to impose civil and criminal penalties on agents and others who procure their positions or their entitlements through undue influence or other means.

Isn’t a form will or trust better than nothing?

Maybe. Dying without estate planning documents means that the state may make important decisions for you, such as how your property will be distributed, who will care for your minor children and what medical care you’ll receive if you are unable to make your wishes known.

But, if the state law actually fits your desired outcome, it may be better not to mess with these well-defined rules. It’s simply too easy to make mistakes because you don’t understand the instructions given by the DIY program or you followed the instructions incorrectly. The program might not have the ability to deal with common complexities such as children from a prior marriage, children with special needs, property that has appreciated in value resulting in capital gains, or estates that are large enough to be subject to estate taxes.

The bottom line

There are obvious savings in legal fees by using form wills and trusts, but there are also risks involved. One of them is that problems such as defective forms, violations of state law, or improper witnessing will not be apparent to you when the documents are signed. It may be only after death occurs many years later when the problems are discovered, and at that point it may be very costly, or even worse, too late to revise the documents.

Six things to consider when choosing an estate planning attorney

Now that you’ve learned how an attorney can help you put together your estate plan, here are six things to consider:
1. Knowledge and experience
With tax law constantly changing, it’s key that you pick an estate planning attorney who knows the tax laws inside and out, and how they might affect your plan.
2. Your comfort level
Working on an estate plan is not a one-time task. It’s the start of a long-term relationship where you place your confidence in a professional to guide you—now and into the future-— with the solutions that fit you best. Since you’ll be revealing sensitive confidential information to this person, you need to feel confident that they’ve completely earned your trust.

Your attorney’s knowledge and experience as an estate planner is also important. But your comfort level with this person is just as important, if not more so. Do they truly listen to and understand any concerns you have, and do they genuinely want to be of service, explaining all your options simply and clearly? Or, does the attorney seem put off by your questions, making you feel like you’re getting a stock answer or solution?

3. Cost
When you hire an attorney, make sure you get the most for your money. Don’t sacrifice quality just to save a few dollars, especially when it comes to something as important as your estate plan. To maximize the value of service and support you get in return, don’t hesitate to ask them questions about billing:
  • Do you bill by the hour or a flat fee?
  • If you bill at an hourly rate, how much is it and roughly how many hours do you think you’ll need to complete my estate plan?
  • If you charge a flat fee, what services does it include?
  • Do you charge extra for a basic consult (answering questions I have up front)?
4. Timeliness and responsiveness
A good attorney will always get back to you quickly. So be sure to ask how long it takes to have a draft(s) for you to review, and how much time they’ll need to make any changes you request.

5. Location
Think about how important where you live is to you. Can you—or are you willing to—potentially work with the attorney at their office, out of town? Does traveling that distance pose a major challenge? Take your time to consider how or if these things might factor into deciding who to hire.

6. Retainer agreement
Earning your trust is essential to the client/attorney relationship. When it comes to the written retainer agreement, your attorney should provide you with one that details their responsibilities, as well as what part you’ll play. You’ll want to make sure the agreement breaks down every aspect of the fee structure in laymen’s terms and is clear about when you’re expected to pay. The more specific your written agreement, the more you reduce the chance of any misunderstanding between the two of you.

The TIAA attorney referral list
TIAA created a process to help you choose the attorney who may be right for you. Look to your TIAA advisor to give you a list of local attorneys who have experience in estate planning.1
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1 The attorneys contained in the list have represented that they have experience with estate planning. This list is provided to assist our clients in identifying estate planning attorneys in certain geographic locations, but it should not be used as a substitute for determining whether a particular attorney is qualified to meet your needs. TIAA and its affiliates do not specifically recommend, endorse or sponsor the individual attorney, law firm and/or services provided. Moreover, TIAA and its affiliates will not be liable for any damages, losses or causes of action or any nature that may arise from any legal services provided by the attorneys or law firms contained in the estate planning attorneys list.

This article is for general informational purposes only. It is not intended to be used, and cannot be used, as a substitute for specific individualized legal or tax advice. Tax and other laws are subject to change, either prospectively or retroactively. The TIAA group of companies does not provide tax or legal advice. You should consult with your personal tax and legal advisors about your estate planning needs. Examples included in this article, if any, are hypothetical and for illustrative purposes only.

This material is for informational or educational purposes only and does not constitute a recommendation or investment advice in connection with a distribution, transfer or rollover, a purchase or sale of securities or other investment property, or the management of securities or other investments, including the development of an investment strategy or retention of an investment manager or advisor. This material does not take into account any specific objectives or circumstances of any particular investor, or suggest any specific course of action. Investment decisions should be made in consultation with an investor’s personal advisor based on the investor’s own objectives and circumstances.