by Laurie Israel, Esq.
Divorce and Estate Planning
Many individuals ponder over whether to make an appointment to consult an attorney when all they want to do is to have a will and other estate planning documents prepared. There are many over-the-counter products available in office supply stores such as Staples and via the internet. The forms seem to be extremely simple. The publishers of the “off-the-shelf” products have guaranteed that the documents comply with the laws of each state. Why spend the extra money going to an attorney when an intelligent person can “do it himself” (or “herself”)? Why indeed?
We all get information on the internet about many things affecting us. I routinely go to the internet to get information on any medical symptoms I am experiencing, and other issues I am interested in. My clients are always bringing me valuable information from the internet. I myself do much of my legal research on the internet.
What’s the difference between having a layperson do the research and drafting and having an experienced attorney do it? The answer is that often the difference is critical, even in the situation of a “small” estate and simple estate planning documents.
The Wisdom of Seeking Expert Opinion
Recently, I went to the car dealership where I bought my car for a routine oil change. After putting my car on the lift, the technicians found a tear in the axel boot that was leaking oil. If unattended, this tear would have caused a much larger problem, and even a dangerous situation on the road. If I had done the oil change myself, the greater problem would have been missed.
After doing the initial internet research on my current medical malady, I asked my primary care physician, my chiropractor, and also my brother (who happens to be a physician), and got additional information from each of them which will assist me greatly.
It is like this when you visit an estate planning lawyer. The lawyer will ask a number of important screening questions, much like a doctor on a medical visit, or the service desk of a car dealership. By asking questions, we diagnose the client’s goals, property situation, and any unusual circumstances. Lawyers are trained to see “red flags”, and generally, even in the most straightforward situations, a couple of “red flags” will pop out at me.
We see what property is joint, and can explain the implications of this and how it would play out in the estate plan. Sometimes the client did not intend these implications, and remedial actions must be performed. We can find out about the titling of real property, and can assist in the analysis and protection of such property.
Wills and Non-Probate Assets
An important and integral part of the estate planning process is to plan for non-probate assets. These are assets that have beneficiary designations, such as life insurance, 401(k)s, and IRAs. These assets do not pass through your will, assuming a beneficiary is named. (In certain, very rare cases, the property will not even pass through your will if no beneficiary is named, and will go to your next of kin ? a result you may not want.)
The most prevalent mistake of “do-it-yourself” estate planners is to make the beneficiaries on non-probate assets inconsistent with your testamentary intent. For instance, I have been at the hospital bed of a terminal patient who has told me that she changed the beneficiary of her very large IRA to her (new) husband. In checking this out days before her death, I found that husband #1 was still her beneficiary, and she had time before her death days later to change the beneficiary designation with my assistance. (Note that all facts have been changed in this scenario to ensure confidentiality.) You will not find this kind of service with the pre-made forms available in the stores.
Will As A Way to Start Planning
Another great benefit of actually seeing a lawyer (even for your simple estate plan) is that an attorney can help you with ancillary financial planning advice and answer other legal questions you may have. Your attorney will likely be delighted to answer your questions and can send you to a proper legal (or other) specialist to handle other questions you may have.
An intelligent, informed client helps an attorney work better. An attorney is really on a “team” with the client. The client’s knowledge of his or her situation, the law the client knows or has discovered on the internet or by talking with people, coupled with the attorney’s expertise, knowledge of law, and experience creates a winning team. Together the client and the lawyer can put into effect the best estate plan possible.
Copyright ©2005 Laurie Israel.
Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.