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10 Things Estate Planning Lawyers Don’t Want You to Know

  1. You don’t need an attorney to do your own Last Will & Testament.

We’ve all seen the fear mongering articles usually written by estate planning lawyers or their friends in the mainstream money rags magazines that equate doing your own estate planning documents with doing your own oral surgery or disarming a ticking time bomb.  And to be fair, sometimes they do make a good point because most of the time when you first undertake any project you’ve never done before, You Don’t Know What You Don’t Know.  If you are unwilling or unable to invest some of your own time and money in acquiring the information and tools necessary to do the job right, you should hire a professional.  Remember, what you are doing is substituting your time for the attorney’s and his staff. There are hundreds of web sites containing a wealth of information you could consult about documents needed to create everything from a basic to a comprehensive estate plan.  A list of everything included in each of our estate planning document packages can be found here. https://ieds.online/contents-of-every-ieds-estate-plan/

Until recently, the technology was not available to empower individuals to confidently prepare anything beyond a basic cut and paste simple “I Love You Will,” where each spouse left their separate property to the survivor and then to their children.   Yes, form books were available, but they required a significant knowledge of specific state law and its application to the individual fact pattern in order to be used with confidence.  Essentially, it required the use of legal judgment.

However, just as preparation of one’s own income tax return has evolved from pouring over hundreds of pages of instruction forms and schedules, pencils with big erasers handy and an adding machine to the simplicity of TurboTax®, TaxAct® or H&R Block®, so too has estate planning document drafting.  At least it has evolved for savy estate planning lawyers.  At IEDS.online we utilize the same document assembly software used by over a thousand estate planning attorneys in their own offices.  The system is State specific and constantly updated to keep up with changes in State and Federal law.  Just like today’s tax preparation software systems, we employ an online questionnaire that is dynamic, responsive to client questions, and loaded with detailed help at each stage of the interview process.

  1. Estate Planning Documents don’t have to cost thousands of dollars to be done right.

Typical costs of having an estate planning attorney evaluate your financial and family circumstances and prepare the appropriate legal documents for a couple range between $2,500 to $4,000 or more depending on complexity, location and other circumstances.  Many estate planning attorneys will work on a fixed fee basis and most will provide a written fee agreement which will detail the services and documents that will be provided.  The fee agreement should also explain what is not covered and disclose any other fees or expenses you might have to pay.

But beware!  Most lawyers have only one thing to sell, their time! Even though I said many estate planning attorneys will work on a fixed fee basis, when we looked at the actual numbers we were a bit surprised.

A 2017 study of lawyer billing practices showed that despite growing discussions on flat fees and other value-based billing structures, the billable hour remains the most common method for tracking work and billing clients.  The top 10 average rates by city were:

  • New York City $344
  • Los Angeles $324
  • Chicago $312
  • Miami $310
  • Washington DC $304
  • Dallas $300
  • Atlanta $293
  • Boston $278
  • Houston $276
  • Philadelphia $245

Here is a breakdown of individual lawyer rates by practice area:

  • Immigration $340
  • Intellectual Property $318
  • Tax $308
  • Real Estate $304
  • Trusts $301
  • Insurance $186
  • Mediation and Arbitration $162
  • Workers’ Compensation $150
  • Medical Malpractice $149
  • Juvenile $86

Finally, here are the practice areas in which respondents said they use flat fees:

  • Traffic (90 percent)
  • Immigration (72 percent)
  • Criminal (59 percent)
  • Elder Law (30 percent)
  • Bankruptcy (29 percent)
  • Wills and Estates (25 percent)

Let me share a short story with you.  I was talking with a mortgage broker just yesterday who told me that she and her husband recently visited an estate planning attorney to get their documents prepared.  This was not their first meeting.  An engagement letter had been prepared by the lawyer and signed by this lady and her husband.

During the meeting, my friend asked a number of questions.  The couple’s situation, while not extremely complex, did not call for reciprocal wills and then a bequest to their joint children.  She asked a few more questions and then wanted clarification on the answers the attorney gave.  At that point the lawyer stood up and announced that he didn’t think he was the right lawyer for them.  My friend asked another question.  “Why would you say that?”  To which the lawyer answered.  “YOU ASK TOO MANY QUESTIONS!!”

The truth is that when it comes to planning your estate, YOU ARE GOING TO DO THE HEAVY LIFTING.  It does not matter if you go to an attorney that charges you $5,000.00 or more or you use the services of IEDS.online and receive the same documents, or better, for $750.00 it will still be your responsibility to do the “heart work.”  The “heart work” is wrestling with the questions like:

  • whom you should choose as the guardians of your minor children?
  • should there be a different person controlling funds left for the child’s benefit?
  • who should be a successor trustee of any trust we create?
  • do I want to protect my surviving spouse and children from potential creditors and predators after my death?
  • do I need to treat my children equally?
  • is financial equality the same as fairness.

No one can answer these questions (and many others) for you.  This is what makes your estate plan unique.

The attorney will ask you questions and may share valuable insights from his experience.  It is likely he will provide you with a checklist or organizer to assist you in exploring your goals and objectives in the estate planning process.  Once you have completed the checklist and answered the questions, the attorney has the information entered into his document assembly system which produces the finished estate planning documents.

The process is very similar when producing your own estate planning document using IEDS.online.  Instead of driving to the attorney’s fancy office (which is part of fixed overhead which needs to be covered every month), you sit down at your computer in the comfort and privacy of your home or office and visit https://ieds.online.  You explore the many resources available to answer the questions you have about the process and perhaps download an organizer to help you gather and centralize the information to speed your eventual online document assembly interview.

When you are ready to begin you go to the shop page https://ieds.online/shop and choose either a single or couple package depending on your needs.  Pay for your package, save thousands of dollars and get the same quality documents you would have received at the attorney’s office.

We at Interactive Estate Document Systems believe that since you are doing the time-consuming job of gathering, organizing, inputting your information and wrestling with and answering the “heart questions” you should reap the financial reward.  $750.00 for a couple document package and $495.00 for a single document package.

  1. You are smart enough to do your own estate plan and the documents with the right help.

You may be thinking, “well this all sounds great in theory, but I don’t know the difference between a testator and a tator-tot.”  Not to worry.  With a little topic specific education, some definitional help and an intuitive guided interview you will be equipped to create your documents.  You decide who, what, where and when and the software will handle the how and that pesky legalese necessary to make the how happen.

I recently read an article that warned:

Even those advocating self-help options warn that some situations aren’t appropriate for DIY. These cases can include people with multimillion-dollar estates, disabled children who require special needs trusts, blended families (especially where there may be animosity between the kids and the new spouse), property in foreign countries and complex family businesses

This is simply not true.  Each of the situations described above can be addressed by utilizing the document drafting and assembly software used by IEDS.online.  As we stated before, the hard part of the planning process is deciding what you want to have happen.  You need to decide between and sometimes balance the competing interests in blended families (his, her’s and maybe ours).  If you have a child that is or may be receiving government benefits you may wish to incorporate a special needs trust in your Revocable Living Trust, also easily done with IEDS.  If you have a multi-million-dollar estate, our software is powerful enough to create QTIP, QDOT, A/B trusts as needed.  Don’t know what those are?  That’s why we have FYI areas, Instructional Videos, Blog Articles and links to other helpful educational materials.

One reasonable observation is that as with any Do-It-Yourself or Self-Help program is that you need to be willing to read the materials, watch the instructional videos and take the process seriously.

The glimmer of truth in the quote above is, that if you try to deal with a complex situation with a simple tool such as Nolo®, LegalZoom®, LegalShield®, Willing®, LawDepot® or similar cookie-cutter, one size fits all solution peddlers you quite likely will run into trouble.

  1. A Simple Will is a Direct Line to Probate so that’s probably not where you want to be.

Probate is the legal process used to wrap up a person’s legal and financial affairs after death. During probate the deceased person’s property is identified, inventoried and valued or appraised.  Probate is similar to a lawsuit.  First you must file a petition with the court and prove that the Will is in fact the last valid Will of the deceased. It is a slow (usually 9 months to 2 years), public, bureaucratic process that in most cases requires a probate attorney and hefty fees.  While there are simplified procedures for small estates, you will likely still need the assistance of professionals and will still face time delays and publicity inherent in the process.  Although most of what happens during the probate process is mostly clerical it is still expensive.  Most cases do not call for the legal research, drafting or adversarial skills of the attorney.  The attorney (or more often the attorney’s secretary or assistant) prepares a small mountain of standard forms and keeps track of filing deadlines or other procedural requirements.   In some jurisdictions the attorney may make a few routine court appearances, but most of the filings are done online or handled through the mail.

Many attorneys make far more money handling the probate estates for simple Wills than they do drafting them.  Most States have statutory minimum attorney fees and many have similar fees for the separate Personal Representative or Executor. These fees alone can often reach 5% or more of the estate’s gross value before taxes, debts and other expenses are paid. To learn more about your State’s probate laws click here.

If you have minor children, using a simple Will means a Guardian Ad Litem will need to be appointed to handle and manage the children’s interest you left them under the Will.  This means your estate will need to pay for two attorneys.  Your children will need to have guardians until they reach the age of majority (18 in most States).  More importantly, the assets left to the child will be distributed to them when they reach that age free from any restrictions or guidance.  Think they might be tempted to buy that fast car or make other unwise financial decisions?

What about a Will that sets up a Trust to provide for asset management? Even a Will that sets up a Testamentary (at death) Trust to administer assets for surviving heirs must still go through probate before the assets reach the Trust.

The loss of privacy is often overlooked or downplayed as a serious risk in the probate process.  Because probate is a public process, access to private information about your estate including who the heirs are, what they receive, their address and other contact information is often available.  This material is oftentimes used by solicitors for “business” leads or financial predators to stalk their next target.

  1. Joint Tenancy has a lot of its own problems as a solution.

I recently heard a story where an attorney told his client “just put your family home in joint tenancy with your son.  You don’t have any other heirs and it’s much cheaper and simpler that way.” Unbeknownst to the mother (and to be fair probably the attorney) the son had significant financial problems which came to light during the foreclosure action to take mama’s property which was then held in joint tenancy with her loving son.

Joint Tenancy does not avoid probate!  It simply shifts it to the death of the surviving joint tenant.  The same is true with Tenancy by the Entirety which is a special form of joint tenancy between spouses.

If you and your joint tenant are unfortunate enough to die in a common accident, congratulations you just won the lottery and get to have two probate estates to settle.

Joint tenancy often results in unintentional disinheriting.  Example: John and Jane are married own a home in joint tenancy and have two kids, Mark and Sally.  Jane dies tragically in a skiing accident.  John remarries , who also has two children from a previous marriage, and retitles the family home in joint tenancy with Ruth.  John dies and Ruth becomes the owner of the property.  When Ruth dies without any estate planning documents in place, Ruth’s children will inherit, leaving nothing for Mark and Sally.

Should either joint tenant become incapacitated and unable to handle their affairs, the probate court must approve before the other owner can sell or refinance property jointly held, even if the co-owner is the spouse.

Placing property in joint tenancy could affect Medicaid.  When you make someone other than your spouse a joint tenant on your property, you make an immediate gift of one-half of the value of the property.  Because of the 5-year look-back rules for transfers of property, eligibility for qualification for Medicaid benefits could be denied or delayed.

  1. You are going to be doing all most of the heavy lifting in your estate plan.

Lawyers by and large are honest, hardworking and want to do right by their clients, but they are also business people who have bills of their own to pay, overhead to meet, and just like the rest of us only 24 hours in the day.  They have grown comfortable as the gatekeeper of the passage of assets from one generation to the next.  There was a time in the not so distant past when estate planning documents were created on typewriters with cotton bond legal paper and carbon paper copies.  Document creation was truly labor intensive.  Form files were physical not digital and cut and paste wasn’t metaphorical.  Draft documents had to be meticulously reviewed for errors and, when found, significant effort was employed to correct them.

Today is very different and almost every estate planning attorney uses DAS (Document Assembly Systems), because they offer the consistency and efficiency needed to stay competitive in the market.

In either an attorney prepared document case or a DIY case you will still be responsible for:

  • Selecting someone to act as your executor or personal representative and their alternates or successors.
  • Selecting the person(s) you wish to designate as guardian for your minor children
  • Deciding on whether the person you selected as guardian for the children should also oversee the funds you are designating for their care.
  • Selecting the person or persons you wish to act as your Successor Trustee.
  • Assembling a list of assets, their locations, approximate values and current titling.
  • Creating a list of your digital assets, logins and user IDs, passwords.
  • Choosing a person to hold your Financial Power of Attorney in the event of your incapacity.
  • Choosing alternates for powerholders in the event your first choice or second or more is unavailable or unwilling to serve.
  • Determining who is to receive your assets when you die.
  • Determining what asset each person or entity should receive.
  • Determining when assets should be held and when and if they should be distributed to the selected person or entity.
  • Deciding on what is fair.
  • Deciding whether you wish to be fair.
  • Determining in advance under what circumstances you would decline or receive medical treatment if unable to communicate those decisions.
  • Picking someone to make medical decisions for you in the event you are unable to.
  • Choosing alternates for the persons listed above.
  • Declaring your choice as to whether your agents act alone, together, or in a designated order of preference.

 

  1. You will need to pay for the original documents and come back for revisions every few years which won’t be free.

Just because you have finished your estate planning documents it doesn’t mean they are final.  The one thing that is certain is that things change.  Life events occur regularly and often they necessitate a change to our estate planning documents. Here are a just a few examples:

  • Birth or Adoption of a child or grandchild
  • Change in your financial health
  • Critical illness of an individual or family member
  • Incapacity requiring home or assisted living care
  • Retirement
  • Death of a family member
  • Moving to a new state
  • Purchase or sale of a home
  • Change in marital status
  • Children reaching age of majority
  • Divorce
  • Changes in tax or other applicable laws

As mentioned before, attorneys only have their time to sell.  Especially in the case of estate planning document reviews, you will in most cases be charged a flat fee and an hourly fee for any significant changes required as a result of the review.  It is not uncommon for these fees to run into hundreds if not thousands of dollars depending on the time and effort required to update your existing documents.  In cases where relocation to a different state is involved, there may be a suggestion to simply start the process from the beginning or do a complete restatement of a revocable trust and rewrite of the state specific powers of attorney and health care powers because of differences in state law.  How many times are you going to have to pay for the same set of documents?  This question often keeps clients from starting the process in the first place if they anticipate a move in their future.

IEDS.online answers the question with a simple cost-effective answer. ONCE.  When you prepare your estate planning documents using our system you can make changes as needed, at any time during your first year, completely for free.  After the first year there is an optional maintenance fee of $9.00/month which provides for continued access to the drafting system for any desired changes to your documents needed resulting from life change events and continued access to your Docubank® online vault.  To learn more about the features and benefits provided by your Docubank® subscription click here.

  1. You will be responsible for funding your trust or you’ll pay to have it done.

Funding your trust is the process of retitling assets that are titled in your name or in joint names into the name of the Revocable Living Trust, or for assets that require a beneficiary designation, naming the Revocable Living Trust as the primary or secondary beneficiary of those assets.

Why should you fund your trust?

  • Assets held outside of your revocable living trust cannot be managed by your trustee. The trustee of your Revocable Living Trust has no power whatsoever over the property that has not been retitled in the name of the Trust.
  • Assets held outside of your Revocable Living Trust may need to go through probate. The property that has not been retitled in the name of the Revocable Living Trust may have to go through probate after your death. This, in turn, will defeat one of the main benefits of creating a Revocable Living Trust—avoiding probate.
  • Assets held outside of your revocable living trust may not go to your intended beneficiaries.After your death, a property that is held outside of your Revocable Living Trust cannot be disposed of as provided in the trust agreement. Instead, assets held outside of the trust may pass by rights of survivorship to other joint owners or to the beneficiary named on the beneficiary designation form such as is used for a Payable On Death account or Transfer On Death account.

Even though funding your trust after its creation is such a critical step, most attorneys will not include that step in their “flat fee” engagement.  Each person’s financial situation is unique.  You may have one bank account, two life insurance policies, a 401k plan and a home that all need to be transferred into your trust.  Or you may have a substantially larger number of assets that will need to be transferred into your trust.  Again, remember that the attorney has one item that is his or her “Stock in Trade” – Time.

Many estate planning attorneys will provide you with a “Funding Memorandum” or Instructions that will provide information helpful in changing titling to your Revocable Living Trust.  Funding your trust isn’t difficult but it will take some time, either yours or the attorney’s, so be forewarned.  Should you choose IEDS.online to prepare your estate planning documents, preparing transfer letters and beneficiary designation change directions is included at no extra cost.  Click here to see examples of “Funding Instructions” and titling change letters.

 

  1. It doesn’t take months to get your estate planning documents done.

For most people, gathering your personal and financial information and determining your goals and objectives (the who, what, where and when) will probably take the most time in your estate planning process.  When it comes time to actually create your estate planning documents with IEDS.online, it helps to have a completed Personal Data Sheet and an Estate Document Worksheet to speed the process. Completion of the online interactive questionnaire usually takes about 30-45 minutes.  Once that is completed, your questions are internally reviewed and sent for draft generation.  Drafts are typically sent for client review within a couple of hours.

  1. Your situation is not too complicated to your own estate planning even if you have been married more than once or own a business.

 

The DAS we utilize at IEDS.online is the same one I use in my private estate planning law practice where we deal with all types of family structures and situations.  You are always wise to educate yourself in the areas that are of specific concern to you and your situation.  Should you want a review of your documents, we can put you in touch with attorneys in your State that utilize the same DAS so that they will have a familiarity with the language utilized in your IEDS.online documents to speed their review and therefore save you both time and money.

 

  1. Bonus – Interactive Estate Document Systems provides you with all the tool and know-how to do a complete, custom designed, law-firm quality estate plan and document set.

Contents of every IEDS.online plan:

  1. Easy to Read and Understand Summary of Estate Planning Provisions
  2. Instructions for Successor Trustees and Other Fiduciaries
  3. Premier Personalized Probate Avoidance Revocable Living Trust
  4. Declaration of Trust
  5. Certification of Trust
  6. Assignment of Personal Property
  7. Instructions for the Distribution of Personal Property (a form to be completed after receipt of the Trust Package)
  8. Last Will and Testament including Pour-Over Language Into Your Revocable Living Trust.
  9. Durable Power of Attorney for Financial Matters
  10. Advance Directive for Health Care (which includes the “Living Will”)
  11. HIPAA Authorization and Waiver
  12. Digital Assets Inventory
  13. Financial Assets Worksheet
  14. Document Finder
  15. Key Advisors Worksheet
  16. Close Friends and Relatives Worksheet
  17. Final Disposition Instructions (i.e., “Burial Instructions”)
  18. Instructions for Transferring Assets to Your Trust
  19. The Transfer Documents
  20. Complimentary One Year Subscription to DocuBank® Online Document Vault with 24/7/365 Worldwide Access to Health Care Directives
  21. Unlimited Revisions for One Year, Optional Maintenance Thereafter for $9.00/Month

It is simple and easy to get started.  Simply click here and choose a single or couple package.

If you have procrastinated up to now and do not have an estate plan and fail to  take the next step right now to begin to design and implement your estate plan, the sad reality is that you will most likely continue to procrastinate for many years to come and probably will die without protecting your family.

We all have a choice to leave a legacy of peace or a legacy of chaos.  I urge you to take action now.

I congratulate you for making it to the end of infographic.  It tells me you care about your family. It indicates a desire to deal with the problems and expense your family may suffer if you die without an estate plan in place.  One of the most caring things you can do is keep people from guessing what you wanted.

Planning for the future is a love letter to those you leave behind.

 

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