“Why do people use lawyers to prepare their wills?” a client asked me a couple of weeks ago. “I don’t have a lot of stuff and I was wondering whether I could buy the forms at Office Depot.”

It’s a valid question. After all, Office Depot sells will preparation software for $69.95, less than the cost of consulting an attorney to prepare your will. And several other do-it-yourself services offer wills for less. You can probably even find a free will form online if you look long enough. Why should you use an attorney to prepare a will for you?

DIY Estate Planning is Fraught With Risk

Document preparation services make it appear that the process of creating a will is easy. As a result, many people mistakenly believe that their estate planning needs can be met by simply filling in the blanks in canned documents.

What they don’t realize is that do-it-yourself estate planning is fraught with risk. So much so that even an educated consumer can be lulled into a false sense of security by a document with significant flaws.

DIY services are not a substitute for the advice of an attorney

Before using do-it-yourself document preparation services or forms, pay careful attention to their disclaimers. Generally, they specify that they are not acting as your attorney, that the information they provide is not a substitute for the advice of an attorney, and that they cannot apply the law to the facts of your individual circumstances.

Individual circumstances impact estate planning

Why is the disclaimer significant? Because your individual circumstances have a huge impact on what kind of provisions you need in your will. In other words, language that may further one person’s goals and objectives may be disastrous for another.

For example, if you are married with no children, naming your spouse the sole beneficiary of your entire estate would be reasonable. However, suppose you are part of a blended family and have children from a previous marriage. If your will gives all your assets to your new spouse outright, you may end up disinheriting your children. For a specific example of how this can happen, read Do-It-Yourself Estate Planning Mistake Disinherits Child.

Or perhaps you’d like to name your children as beneficiaries of your estate. If they are responsible and financially stable adults, it may not be problematic to leave them an inheritance outright. But if your children are still minors, doing so might trigger the need for an expensive guardianship. Or if one of your children has special needs, he or she may be disqualified from receiving any means-tested benefits until the inheritance is used up.

Get the idea? The devil is in the details. Consideration of factors like these influence whether your estate planning documents will work. The documents you create with these do-it yourself estate planning services may look good and have impressive language. But if they don’t work for your unique circumstances, they are completely worthless.

A false sense of security

Unfortunately, the fact that documents created with do-it-yourself document preparation services look and sound good gives people a false sense of security. They believe the documents they prepare will address their estate planning needs. But with estate planning documents, they are unlikely to discover their mistakes.

Why? Because the mistakes don’t become evident until you die, and the people left to deal with the mistakes are likely the people you’re preparing your will to protect.

The bottom line

Attorneys don’t simply fill in forms. We use our years of schooling and experience to analyze your unique circumstances, explain the ramifications of your choices, advise you on the best way to accomplish your goals and objectives, and tailor your documents to address your unique estate planning needs. Document preparation services and canned forms do not.

Incidentally this client and I had our initial conference recently. After spending almost an hour talking on the phone, she told me she was really glad she decided to use an attorney instead of trying to do write her own will. “I would have been screwed,” she said.

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LegalZoom and other do-it-yourself document preparation services want you to believe that the process of preparing a will is as easy as filling in the blanks on standardized forms.

1. They try to lure you with a cheap product and a process that takes less than half an hour to complete.
2. They try to assure you with testimonials of customers professing that their product has given them “peace of mind.”
3. They provide you with a portal that gives you a “general understanding of the law” even though the information it contains is “not guaranteed to be correct, complete or up-to-date.”
4. They suggest that the document you get from their company will be just as effective as one an attorney creates by garnering endorsements from famous lawyers like Robert Shapiro.

In short, despite a disclaimer that their document preparation services are not a substitute for the advice of an attorney, they try to convince you that the advice of an attorney is simply not necessary.

Do-it-yourself wills provide a false sense of security

As part of an experiment Minnesota attorney, Gregory Luce, who is currently the Practice Development Director at the Minesota State Bar Association, agreed to buy a will though LegalZoom. He has recorded his progress doing so in a series on his Practice Blawg and plans to compare the service and will he obtains from LegalZoom with the process of getting a will prepared by an attorney.

Greg is married, and has two children, one from a previous marriage and the other from his current marriage. Even though he does not practice estate planning, he is a licensed attorney. His experience provides a glimpse at how even an educated consumer may be lulled into “peace of mind” by a document with significant flaws.

Is the advice of an attorney necessary in the preparation of a will?

Greg posted a video on his blog that documents his experience of obtaining a will through LegalZoom. Although it’s somewhat lengthy, I’d encourage you to watch it because it demonstrates how easy it is for even an attorney to make significant mistakes.

One thing that stunned me as I watched the video was the following highlighted statement:

On the top left-hand corner of the page, LegalZoom reveals that 80 percent of people who fill in blank forms to create legal documents do so incorrectly. Despite this dislaimer, LegalZoom tries to reassure its customers that professionals are there to help; that customers can have “peace of mind” knowing that LegalZoom professionals will customize their will based on their legal decisions.

But LegalZoom is not a law firm. It is not permitted to review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.

Consequently, LegalZoom resorts to providing only general information on legal issues commonly encountered, and offers guidance in some instances by indicating that a majority of its customers have answered a question a certain way.

The problem is that everyone’s situation is unique. Just because the majority of customers have answered a question a certain way, for example, doesn’t necessarily make it right for your individual circumstances.

So if serious legal mistakes are made, you’ll never know because they will not become apparent until you die. And the people left to deal with the mistakes are the people you’re probably creating your will to protect.

If it seems to good to be true, it probably is

According to Greg, his LegalZoom will arrived in a very professional packet that contained a booklet titled “Guide to Your Last Will and Testament,” a “Property Worksheet” for listing all assets in one place, and instructional sheets  titled “Notarizing Your Documents,” Executor’s Guide,” and “Guardian’s Guide.”

Besides the fact that one of his son’s was excluded from the testamentary trust he created for his children, a potentially costly mistake, Greg writes that he was surprisingly impressed by the will he received, noting that the will did what he thought it should.

But since he is not an estate planning attorney, Greg posted a copy of the will so that others could look at it and point out any issues that may be problematic. Not surprisingly, there were plenty of problems, which you can read in the comment section of his post titled Reviewing My $69.00 Will.

Below is a summary of just a few of the ones mentioned by some attorneys who commented:

1. It failed to include an alternate trustee in the event the named trustee predeceases him or is unable or unwilling to serve.
2. It failed to include a self-proving affidavit, which means that witnesses would have to be tracked down in the event of his death to testify to the validity of the will.
3. It failed to provide guidance about beneficiary designations on non-probate assets which pass outside the will.
4. It failed to include a provision that would allow him to direct the disposition of personal property in a separate document.
5. It failed to address the contingency of the death of his children, or the birth or adoption of a third child.
6. It failed to include spendthrift provision in any of the trusts, which protect the trust assets from the trust beneficiary’s creditors.

One problem I noticed which was not mentioned in the comments was that the will potentially disinherited Greg’s oldest child by bequeathing 100 percent of his gross estate to his current wife.

Greg has a blended family, and his current wife is not his oldest son’s mother. As the sole beneficiary of his estate, she would have complete control over Greg’s assets. She would have the power to decide how the assets will be used and who will benefit from them. She could choose not to share any of Greg’s estate with her stepson.

Do-it-yourself wills are not worth the risk

Attorneys do more than draft a document. They advise you on the best way to protect your family and preserve and distribute your assets according to your wishes.

Yes, the advice of an attorney costs more. But eighty percent of people who fill in blank forms to create legal documents do so incorrectly. Are you going to beat the odds? Are you willing to take the risk?

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My daughter recently brought a book home from school titled “Separate Ways.” It’s a story about a husband and wife who are having marital difficulties, and their two children who are dealing with anxiety caused by the conflict.

In the book, the parents eventually decide to divorce but reassure their children that the divorce will not affect their love for the children or their devotion to raising them.

Divorce ends a marriage, but not the relationship between a parent and a child. Most divorced parents intend to be an active part of their children’s lives, supporting them both emotionally and financially if they are able.

And despite remarrying and having additional children, most parents still want children from a previous relationship to be beneficiaries of their estates. That’s why the story of a girl I’ll call “Rose” is so heartbreaking.

Her father “Jack” divorced her mother, remarried and had two more children with his new wife. But Jack continued to have a good relationship with Rose, and was involved in her life.

Before traveling on a last minute business trip, he hastily made a holographic will giving all his worldly possessions to his wife. Jack died. His holographic will was declared valid, and his wife was named as the sole beneficiary of his estate.

Perhaps Jack believed that his wife would help Rose financially. But as the sole beneficiary of his estate, his wife has complete control over Jack’s assets. She has the power to decide how the assets will be used and who will benefit from them. She has chosen not to share any of Jack’s estate with Rose.

If Jack had consulted an attorney, he could have made a will that set aside a portion of his assets in trust for Rose’s benefit. Rose heads off to college this year. The trust assets could have been used to help Rose pay for her college education. But by taking his estate planning into his own hands, he disinherited his young daughter instead.

It probably wasn’t what Jack intended to do, but Rose is living with the consequences of that mistake.

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A couple of weeks ago, I published a blog post entitled The Problem With LegalZoom (And Other Do-It-Yourself Estate Planning Solutions) which highlighted some of the pitfalls of relying on do-it-yourself document preparations services.

The article piqued a lot of interest and two weeks later, it is still one of the most popular posts on this blog. Because of its popularity, the article is turning up on the first page of many Google searches related to LegalZoom when keywords such as “LegalZoom Texas” and “LegalZoom trusts” are used.

Now it might be purely coincidental, but LegalZoom has apparently taken notice of the article as well because the information it now provides about Texas wills is different than it was just two weeks ago.

LegalZoom Corrected Its Mistakes

On the day I published my original article, LegalZoom’s website incorrectly stated that Texas recognized oral wills, even though Texas had repealed the statute authorizing oral wills three years earlier.

LegalZoom’s website also incorrectly stated that Texas did not have a statute pertaining to care for pets, even though Texas had enacted a statute authorizing pet trusts four years earlier.

But now, these inaccuracies have been corrected. And the only evidence of the mistakes is a screenshot of the original website copy.

So LegalZoom’s problem is fixed?

LegalZoom may have changed its website copy to accurately reflect the current laws. But the real problem with LegalZoom can be summed up by its own disclaimer:

1. The employees of LegalZoom are not acting as your attorney.
2. LegalZoom’s legal document service is not a substitute for the advice of an attorney.
3. LegalZoom does not review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.
4. The legal information on LegalZoom’s Website is not guaranteed to be correct, complete or up-to-date.

These warnings aren’t unique to LegalZoom. Virtually all do-it-yourself will preparation and other legal service sites have a similar type of disclaimer. So when you use them, you do so at your own risk.

But Doesn’t LegalZoom Offer a “Peace of Mind Review”?

For a little extra cost, LegalZoom offers a “Peace of Mind Review.” Despite what the phase implies, this review involves little more than proofreading the document to make sure:

1. All the blanks are filled in, and there are no spelling, grammatical, capitalization or punctuation mistakes.
2. The document is paginated properly, and the font is consistent throughout.
3. Abbreviations are not used.
4. Full names are given and appear consistently in the document.
5. Correct residency information and shipping addresses have been provided.

At no time will LegalZoom offer any advice, opinion or recommendation about the best way to protect your family and preserve and distribute your assets in the manner you chose.

Do-It-Yourself Wills Are Risky

Laws will continue to change and attorneys will continue to keep up with them so that we can provide our clients with personalized advice that is correct, complete, and up-to-date.

Will LegalZoom and other do-it-yourself document preparation services do the same? Are you willing to take that risk?

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LegalZoom advertises itself as a cheaper alternative to an attorney. And many forgo professional advice because they are lured by the lower costs and believe the document LegalZoom creates will be just as effective as one created by an attorney. Having heard so much about LegalZoom, I recently visited its website.

At first glance, the LegalZoom site looked like it provided state-specific advice regarding Texas wills.  And had I not been a Texas lawyer who focuses on estate planning, I might have trusted that the site was providing me with accurate and current information.

But a few moments after I started reading LegalZoom’s website copy, I noticed a couple of glaring mistakes.

Estate planning laws change

Laws are not static. They constantly change because of new case law and statutes. And lawyers keep up with these changes in order to best advise their clients. LegalZoom? Not so much.

The first mistake I noticed concerned LegalZoom’s statement about oral wills. According to LegalZoom, Texas recognizes oral wills.
LegalZoom is apparently not aware that effective September 1, 2007, Texas repealed Sections 64 and 65 of the Probate Code, which authorized oral wills. Under the current state of the law, Texas will not recognize an oral will unless it was made before September 1, 2007, and even then, only in very limited circumstances.

Another mistake I noticed was under the subheading “Providing for Pets.” LegalZoom stated the following: LegalZoom is apparently also not aware that effective January 1, 2006, Texas enacted Section 112.037 of the Property Code which authorizes statutory pet trusts. This means that even though four years have passed since the statute was enacted, LegalZoom is still not aware of this change in the law.

Furthermore, even before statutory pet trusts were authorized, it was still possible for a pet owner to create a traditional trust to provide for a pet. A traditional trust provides for pet care indirectly by instructing a trustee to cover expenses incurred by the pet’s caretaker, the actual beneficiary of a trust, as long as the pet is cared for properly. Nowhere does LegalZoom mention this.

Details matter in estate planning

Now you may be thinking that I am blowing these little mistakes a bit out of proportion. After all, one of them concerned pets. And no one uses LegalZoom to make an oral will, so that is a harmless error.

But if LegalZoom is not current on laws about these two issues, what else has it missed? How can anyone who uses LegalZoom trust that the legal document he or she creates will do what it is supposed to do?

LegalZoom does not provide legal advice

LegalZoom does not purport to give legal advice. In fact, LegalZoom specifically states that in its disclaimer. Summarizing LegalZoom’s own disclaimer:

1. The employees of LegalZoom are not acting as your attorney.
2. LegalZoom’s legal document service is not a substitute for the advice of an attorney.
3. LegalZoom does not review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.
4. The legal information on LegalZoom’s website is not guaranteed to be correct, complete or up-to-date.

Do-it-yourself estate planning is risky

The problem is that the documents LegalZoom creates could be completely ineffective.

People who use LegalZoom and other do-it-yourself estate planning kits end up with a false sense of security. They create documents that they believe will address their estate planning needs. But with estate planning documents, they are unlikely to discover their mistakes.

Why? Because the mistakes will not become evident until after they become incapacitated or die. And the people who will be left to deal with the mistakes are usually the people the documents were supposed to protect.

You and your loved-ones deserve the advice of a lawyer who considers the facts of your particular situation. You deserve legal advice that is correct, complete and up-to-date. LegalZoom by its own admission does not provide that.

The bottom line

The money you save now could be spent many times over after you die to address legal issues about which you were not even aware.

Attorneys don’t simply fill in forms. Rather, we use the knowledge we have acquired during our many years of schooling and practice to advise you on the best way to protect your family, and preserve and distribute your assets in the manner you choose.

Your loved-ones are worth it. Wouldn’t you agree?

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