THE CASE AGAINST “DIY” WILLS OR TRUSTS
A will or trust are two of the most important and fundamental planning documents needed by nearly everyone, especially as you move toward retirement. Yet an astonishing number of people of all ages still don’t have one or the other. Psychological factors are at play–it’s extremely stressful to confront one’s own mortality. Plus it’s painful to spend money on estate planning, because you don’t live to reap the benefits even if you know your heirs will.

Purveyors of do-it-yourself books, software and online forms are trying to change that. The cookie cutter documents they sell to help you generate a will cost a fraction of what many lawyers charge. Fueled by the technological revolution, these products have proliferated in recent years, with at least a dozen offered online, plus many books and assorted boxed software.
This development makes me cringe–so much, that I won’t mention specific products in this article, because I don’t want any of them saying in promotional materials, “As mentioned in the Astill Law Firm Blog (I should be so famous!).”

Why am I strenuously opposed to do-it-yourself wills and trusts? There are just so many things that can go wrong–from the wording of the document, to the required formalities for how it must be signed and witnessed before it can be valid. I make it a hobby of collecting DIY horror stories. And I’ve gathered some doozies. As one lawyer in Indiana has said, “using a DIY will is like pulling your own tooth with a pair of pliers instead of going to the dentist”. No kidding, for those of us who practice in this area, it is too similar to be funny. Likewise, if you use an attorney who does not regularly practice in the estate planning field, it’s like getting your oral surgery done by the person who cleans your teeth.

One sad example involved Charles Kuralt, the CBS News correspondent and anchor. Several weeks before he died in 1997, he penned a note to Patricia Elizabeth Shannon, his mistress for 29 years, promising to leave her 90 acres and a renovated schoolhouse near the Montana fishing retreat where they spent time together. After Kuralt’s death, his family and Shannon spent six years in court fighting over whether this note was a valid amendment to the 1994 Will that a lawyer had prepared, or simply a promise to revise the document–a promise that Kuralt never carried out. Without ruling on this issue, a Montana court awarded Shannon the $600,000 property but stuck Kuralt’s family with all the estate taxes. Surprised that a prominent and wealthy public figure would not have ironed out all of these details? Don’t be, it’s all too common.

Proponents of self-help products argue that a DIY will is better than having no will. But they’re only partially right – or they can be so wrong it hurts. I give them credit for educating people about the dangers of not having a will. Without one, if your children are minors and you were a single or surviving parent, a court would appoint a guardian for them, and it might not be someone you choose. And, state law determines how most of your belongings are distributed. Whatever is left after taxes would be distributed to the persons specified under the law. It’s called the laws of intestacy (a fancy lawyer word for “died without a valid will”). This law, which varies from state to state, establishes a ranking of inheritors from people who die without a will or living trust. Some newer laws say everything will go first to the spouse, then to children, parents and siblings. However, plenty of state laws still divide an estate between the surviving spouse and children in preset proportions, especially if there were children of a prior marriage (that’s what Utah does). But what the DIY folks don’t usually mention, and many people don’t realize, is that the laws of intestacy also apply if you foul up a DIY will.

In one instance we heard of several years ago, a father was estranged from one of his children and wanted to disinherit him. Dad bought DIY will software from a big-box store and, following the prompts, listed his assets and made gifts to children, but omitted some important ones: small numbers of shares of various phone company stocks that he had bought many years earlier. Those shares, which probably once seemed like peanuts, had grown in value because of mergers and stock splits and were worth several million dollars, and made up the largest part of Dad’s estate by the time he died.

Because Dad did not understand how important it was to have a residuary clause, and the DIY software didn’t explain it in a way that a lay person could understand, the DIY will was completed without such a clause. A residuary clause, by the way, is a clause that says, “after everything else is paid for and if there’s anything left, here’s who it goes to…” So guess what happened? The stocks passed according to the law of intestacy, and the son, who the father wanted to disinherit, walked away with almost $400,000. To make matters worse, he had a substance abuse problem and blew through the money in less than a year. Not the intended result right?

Another case had a blank where it said [Insert Name Here]. Dad overlooked the blank and guess what? The State in which he died inherited that “no name” property. Yuk!

Lastly, even signing of the will or trust can be tricky. The law provides some pretty specific signing requirements for wills for a good reason…the avoidance of fraud and undue influence. But it also trips people up. Witnesses have to be in the presence of the signer of the will, and of each other, as each signature is made. One of the earliest cases I ever read on estate planning involved a witness who signed a will, and then walked away for a minute while the other witness signed…IT WAS INVALID! Those things are not well explained in most DIY programs. And even if they are, you have to be a pretty detail oriented person to get it right.

These are just a small sample of problems. I’ve seen too many examples already come into my office from people who did DIY wills. So what’s the answer? Get a competent Estate Planning Attorney to help you do it right. Compared to the cost of lawsuits in the estate, or inheritances going to an unintended beneficiary, or having an invalid will, the services of a good attorney are pretty inexpensive.

This is a story we hear all too often —
“Mom and dad created a revocable living trust. They wanted to avoid probate. You see my sister lives in a group home because she is developmentally disabled. The trust named me as trustee, and my sister’s share goes into a special needs trust. I just discovered they named all of us kids as beneficiaries on their IRAs, and the house wasn’t transferred into the trust. What do I do?”
Simply put, you have some troubles. Some, more troublesome than others, in fact:
1. Not transferring assets to the trust (like the house) means that the probate avoidance value of the trust is lost altogether. In Utah, we will have to file a probate proceeding to transfer the house to the trust — and then it can be distributed properly. The good news is that those assets they DID transfer into the trust won’t be subject to the probate proceeding. The bad news: there will still have to be a probate proceeding. Your parents failed in their goal to avoid probate. In Utah that’s not the end of the world. Our probate system is very user friendly and not excessively expensive, and it is simple if that’s the only asset that we need to deal with (assuming your parents also signed a good “pour-over Will”.
2. The IRA beneficiary designations create a different difficulty, one that is difficult to overcome. The other kids will get their share of the IRA just fine, even though your parents didn’t use the trust. But your sister’s share will go outright to her and will cause her to lose her eligibility for at least some public benefits — and we will probably have to have a court proceeding (in Utah, a conservatorship) to appoint someone with the legal authority to receive and manage her inherited IRA. Plus, we may have to have a related court proceeding to set up a special needs trust (we can’t use the one that your parents created) to receive those funds — and if we do, any proceeds remaining in that trust when your sister dies, will first have to be used to pay back the State for any benefits it provided. In other words, your parents failed in their goal to provide protection for your sister’s inheritance. We can protect it for her benefit, but at her death the State has claim to all or part of the remainder.

How did this happen? Didn’t the creation of the trust address both kinds of problems?
No. Creation of the trust was one thing. Funding of the trust is another.

“Funding” is the term lawyers usually use to describe all the different kinds of things that have to be done to get assets titled in the name of a revocable living trust. It is an essential part of the process, and usually is part of the job taken on by the lawyer who drafted the trust. Not every lawyer agrees, but we at ASTILL LAW FIRM, feel that we have not completed our job unless we have at least initiated the process of getting assets transferred to the trust. The practical effect: even after you sign your estate planning documents, you may still be working with our office for weeks or months to get the “funding” done.

Some assets are fairly easy. The house title (at least for Utah properties) is easy for us to prepare. If there is out-of-state real property, we may need to involve a lawyer from the state where the property is — but even that is usually a fairly modest cost. A lawyer in, say, Indiana might transfer Indiana property to the Utah trust at a low cost, hoping that we will return the favor the next time she has a Utah property to transfer into an Indiana trust (we probably will).

Other assets can be more complicated. Your bank, credit union or brokerage house may resist changing accounts into the trust’s name. Some may flat out refuse. Some will appear to have done it right, but then later decide that the title hasn’t actually been changed at all (and they may not tell us).

Then there are the assets that get changed after the trust is signed. If you have refinanced your home mortgage, or purchased a certificate of deposit from a new financial institution, or talked to your “personal banker” about accounts, you might well have signed new title documents. You often will not even realize that that is what you were doing — no one ever says: “you know, if you sign this document it might just mess up your trust funding — you should talk with your estate planning attorney first.” We wish they would say just that.
Some assets get overlooked. Did you remember that you inherited a 5/24 interest in some oil and gas rights in Texas? Did you tell us about the small bank account you kept in your hometown bank when you moved to Utah 23 years ago? Did you even remember that you had a life insurance policy from your time in the military at the end of World War II?

Then there are the beneficiary designations. Life insurance, IRAs and other retirement accounts and annuities almost always have them. Bank and brokerage accounts and, in Utah and a handful of other states, even real estate can have them. Our clients are forever tinkering with them — you go to a seminar, or listen to the bank manager explain the value of annuities, or talk to a tax preparer who assures you that lawyers are overpriced, and then the beneficiary designation gets disconnected from the rest of your estate plan.
Don’t panic. The problems can usually be solved, it just might not be as smooth as you hoped, or in the manner your parents intended.
It would be best, of course, if we could get things right while you’re still alive. Haven’t met with your lawyer in five years? Make an appointment, gather up all the statements, titles and beneficiary designations you can, and sit down to review the funding of your trust. Not every beneficiary designation should name the trust in every situation. Not every account will actually be held the way you believe it is, or the way your lawyer believes it should be.

Even if you don’t get it straightened out while you’re still alive, there may be things your heirs can do. In Utah, up to a total of $100,000 can be collected into your trust without having to do a full-blown probate (not including real estate). There are rules and limitations, but many problems of failure to fund trusts can be taken care of through those provisions of law. Not in Utah? We don’t know for sure (we don’t practice in your state), but there are similar rules in most, perhaps all, states.

Don’t worry, your lawyer here at ASTILL LAW FIRM and our staff are great to work with and we will help solve your problems. But you can see that some problems, though solvable, may not result in solutions intended by the Trust Grantors. Come see us before it’s too late!

UPON DEATH OF A LOVED ONE – SOME THINGS TO ADDRESS:
Immediate Things:

1. Secure the house.
2. Take care of pets.
3. Forward mail.
4. Shut off or curtail use of utilities (or not, depending on circumstances, i.e., if you have to keep the heat on, water the lawn, etc.)
5. Clean out the refrigerator.
6. Stop the newspaper.
7. Check with a friendly neighbor to keep you apprised if there is any activity at the house.
8. Tell the Landlord if the residence is a rental.

Longer Term
Previously we published a checklist. Look at our website or Facebook page for a copy of this checklist.
The Checklist is not exhaustive (though we think it is pretty thorough), and not every item will be applicable in every case. Sometimes you may need to make adjustments — such as when your family member had a living trust, and no probate proceeding will be necessary, or if you have been responsible for managing their bill-paying for several years before the death. Still, we think it will help you organize the papers, questions and information you need to properly take care of the legal and financial issues that will arise.

A couple more caveats:
• Please remember that we live and practice in Utah. This checklist may not be accurate, or as useful, if you live somewhere else, or your family member died somewhere else.
• Several items on our checklist encourage you to collect information of various kinds. In most cases, that’s so that your visit to our offices will be more productive. Sometimes it is to help you answer questions from heirs, creditors or others as you get more deeply into administering your loved one’s estate. If you do collect forms, mailings, etc., keep them in a central place for several years after you have concluded the estate administration.
• Where we indicate that you should keep track of your time and expenditures, we really mean that you should — and from the very beginning of your work. Even if you have no intention of charging a fee, we strongly recommend that you keep track.
• If you are not the person who will be in charge of the decedent’s estate, that does not prevent you from printing out the checklist, monitoring progress by the person who is in charge, and figuring out how you can be helpful.

How quickly do you need to get to the lawyer’s office to review what needs to be done? Usually it is not the most pressing issue, but you should expect to make an appointment within about two to four weeks. If you are the surviving spouse, it probably can wait longer. If you are in town for a short time you might well want to meet right away, at least briefly. But here’s another reality: when you call, you may be looking at a two-week wait before an appointment. That gives us time to schedule you, and to get a questionnaire out to you to help with the collection of information. Usually nothing can be done for a week or two anyway. So don’t wait two weeks to call for an appointment, and then expect it to be immediate.

Do you need to see the lawyer who prepared the will or trust? No. It may be more comfortable and efficient, and the lawyer might have even kept the original documents (we sometimes do that for clients). For example, we maintain detailed electronic files of notes and documents for our clients and most have become good friends by the time they pass away. This helps because we can be up to speed quickly and provide a lot of assistance. Not every firm does this. But there is no need to return to the decedent’s lawyer. It probably does make sense (in most cases) to meet with a lawyer in the community where your family member lived and died.

How long will the process take, and how much will the lawyer charge? It’s really impossible to generalize in any useful way. You might well be surprised at how little it costs. On the other hand, we regularly see family members who think there will be no need for a probate or any costly legal proceedings, only to find out that something was wrong in the estate setup, or something got changed or overlooked.

What are some of the more important points in our checklist? Here are a few we’d like to highlight:
• Assembling a list of bank accounts, annuities, stocks, bonds, mutual funds, brokerage accounts and real estate will speed the process up immeasurably. It will likely also make it much easier for the lawyer to realistically estimate the cost and time to get the probate (or trust) administration completed. Same for creditors.
• The funeral home will help you determine how many death certificates you will need, and how to get them ordered. You might not have visited with us yet, but here’s a practical reality: if you order them through the funeral home, you will get them faster and more cheaply. If we have to get them later it will be time consuming and more expensive. So when you’re figuring out how many you need, estimate high.
• At some point we’re going to need names and addresses for all the heirs and beneficiaries. For some we will also need dates of birth and even Social Security numbers. You can speed the process up if you start collecting that information.
• Forwarding the mail is critical. It needs to get done, and it is often the easiest way to get information about assets and bills.

One last point we want to make: if you had a power of attorney for the decedent, it is no longer valid. While a “durable” power of attorney survives even if the signer becomes incapacitated, no power of attorney survives the signer’s death. Do not sign checks, make credit card charges, or do anything else using the power of attorney.
Call us to discuss what needs to be done next. We will be very sorry to hear of your loss. We are here to help.

I was helping someone recently with a sale of their home. A potential buyer came along with a large earnest money and promised a quick close – 10 days. That’s amazing! Thankfully, they asked their attorney (me) to review the contract. Here’s what I found: they had an Addendum that talked about an “undisclosed principal”, in other words, the Buyer wasn’t really the Buyer. The agent was acting as a Buyer, but only for purposes of submitting the offer. The Buyer making the offer wasn’t going to be responsible for the real contract. If the Buyer backed out, you’d have to fight with the agent, the broker and the undisclosed Buyer. So I made some simple changes to make sure that if there was a breach by the unknown buyer, we could keep the earnest money. Suddenly the Agent wasn’t so willing to put a big earnest money down …and then wanted to extend the time for closing and other concessions. What was up?! And the agent was still unwilling to disclose the Buyer because “if we knew, then we could discover the true Buyer’s “trade secret” that they are using to buy hundreds of properties.” Really?!!! Call me cynical or maybe too old to learn new tricks, but I’ve never yet come across a “trade secret” way to buy and sell real estate. It takes real money and it takes real people.

Needless to say, the further down the path we went, the flakier it seemed. The Agent then told the client that they didn’t want to work with me! Why? Because I wanted the contract to say what they were promising? Or was it because I was changing the contract so they really did have money at risk, instead of a phony “trade secret” way to buy real estate. I advised the client to back away from the deal. Better not to get down the path and waste a lot of time and effort and be frustrated with a negative result. Sometimes you can even get a deal like this tied up in court and can’t sell your property for months or years. I have worked with many excellent real estate agents over the years and many excellent attorneys. But I have yet to work with a real estate agent with the same contract drafting skills as a good real estate attorney, and I have yet to work with a good personal injury attorney who is just as skilled in drafting real estate contracts. You gain expertise by education and experience. My advice to all is to have a good real estate attorney review your residential purchase and sale contracts. For the biggest investment most people make in their lifetime, it’s worth the peace of mind!

Ah… the end of a year and beginning of a new year. It’s a traditional time to take stock and set priorities and goals. There are plenty of checklists to give you pause and cause you concern, so we don’t want to add to that. But we want you to consider a long-postponed item that you should put to the front of your lists. It’s interesting how much effort goes into planning a vacation or an important party or other activity, and how little thought we give to one of the most important things we can do to give ourselves, and our family, peace of mind. Without proper planning, your death can be a disaster to your loved ones. Maybe you have heard some of these horror stories.

True Tales
Two individuals with children from prior relationships marry late in life. One spouse dies, leaving his/her retirement plan to the new spouse with verbal instructions that the survivor should leave whatever is left in the retirement account to his/her children. The survivor finds a new several years later. The new loves boats, has expensive hobbies and figures if they have it, they should enjoy a more lavish lifestyle with the newly acquired wealth. So they spend several years satisfying the new spouse’ dreams. Pretty soon its gone. Not long thereafter, the new spouse leaves looking for a new wealthy widow/widower to marry. Suddenly the survivor finds themselves without a safety net of assets and there is no inheritance for the deceased spouse’ children . . . All of the pain is avoidable with a good plan!

Many people have a phobia about estate planning. Nobody wants to think about their own death. My own father refused to come in and sign his Will before his untimely death. He was lucky to have an estate lawyer in the family. For many, proper estate planning somehow implies their death is imminent. Well, it is. But beginning with a basic estate planning checklist, and following through with it…can alleviate anxiety and make all the difference in ensuring your hard-earned assets end up where you intend — and you get the added bonus of having your family love and appreciate you even more because you didn’t ignore this important task.
Although this takes some time, and a little money, the peace of mind will more than outweigh the time and trouble, and it is often less costly than you think. Take a moment and set a goal to consider the following important estate documents with a good estate planning attorney (not your divorce or bankruptcy or personal injury lawyer). Our clients have repeatedly told us that when they are done, it is highly liberating, as long as it is done properly and with good advice from a qualified estate planning attorney.

• Basic Estate Planning Documents
• Will
• Power of Attorney
• Healthcare Directives to Physicians
• Trust (consider a Family Trust under your circumstances)
• Life Insurance
• 401(k) Plans and IRA’s
• Guardians for Minor Children
• Trusts for Minor Children and Young Adults
• Beneficiary Designations for Life Insurance, Pension, 401(k), IRA and HSA plans
• Funeral and Burial Plans

Once you have considered each of these items and dealt with them, you can rest easy, knowing that you have left your family in the best circumstances possible. Call now!