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Wills, Probate and Real Estate Law  Attorney Miami, FL | Abogada deTestamentos, Sucesiones y Bienes Raices en Miami FL


1. What Happens if You Die Without A Will?

If you die intestate (without a will), your state's laws of descent and distribution will determine who receives your property by default. These laws vary from state to state, but typically the distribution would be to your spouse and children, or if none, to other family members. A state's plan often reflects the legislature's guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A will allows you to alter the state's default plan to suit your personal preferences. It also permits you to exercise control over a myriad of personal decisions that broad and general state default provisions cannot address.


2. What Does a Will Do?

A will provides for the distribution of certain property owned by you at the time of your death, and generally you may dispose of such property in any manner you choose.  Your right to dispose of property as you choose, however, may be subject to forced heirship laws of most states that prevent you from disinheriting a spouse and, in some cases, children. For example, many states have spousal rights of election laws that permit a spouse to claim a certain interest in your estate regardless of what your will (or other documents addressing the disposition of your property) provides. Your will does not govern the disposition of your property that is controlled by beneficiary designations or by titling and so passes outside your probate estate.  Such assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits.  These assets pass automatically at death to another person, and your Will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them. Your probate estate consists only of the assets subject to your will, or to a state’s intestacy laws if you have no will, and over which the probate court (in some jurisdictions referred to as surrogate’s or orphan’s court) may have authority.  This is why reviewing beneficiary designations, in addition to preparing a will, is a critical part of the estate planning process.  It is important to note that whether property is part of your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes.

Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. If the will creates one or more trusts upon your death, the will is often called a testamentary trust will. Alternatively, the will may leave probate assets to a preexisting inter vivos trust (created during your lifetime), in which case the will is called a pour over will. Such preexisting inter vivos trusts are often referred to as revocable living trusts. The use of such trusts or those created by a will generally is to ensure continued property management, divorce and creditor protection for the surviving family members, protection of an heir from his or her own irresponsibility, provisions for charities, or minimization of taxes.

Aside from providing for the intended disposition of your property upon your death, a number of other important objectives may be accomplished in your will.


  • You may designate a guardian for your minor child or children if you are the surviving parent and thereby minimize court involvement in the care of your child.  Also, by the judicious use of a trust and the appointment of a trustee to manage property funding that trust for the support of your children, you may eliminate the need for bonds (money posted to secure a trustee’s properly carrying out the trustee’s responsibilities) as well as avoid supervision by the court of the minor children’s inherited assets.
  • You may designate an executor (personal representative) of your estate in your will, and eliminate their need for a bond. In some states, the designation of an independent executor, or the waiver of otherwise applicable state statutes, will eliminate the need for court supervision of the settlement of your estate.
  • You may choose to provide for persons whom the state’s intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities. 
  • If you are acting as the custodian of assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act (often referred to by their acronyms, UGMA or UTMA), you may designate your successor custodian and avoid the expense of a court appointment.


3. What Does a Will Not Do?

A will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law (title) or contract (such as a beneficiary designation) pass to someone other than your estate on your death. For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. Likewise, an IRA or insurance policy payable to a named beneficiary passes to that named beneficiary regardless of your will.


4. How Do I Execute (sign) a Will?

​Wills must be signed in the presence of witnesses and certain formalities must be followed or the will may be invalid. In many states, a will that is formally executed in front of witnesses with all signatures notarized is deemed to be “self-proving” and may be admitted to probate without the testimony of witnesses or other additional proof.  Even if a will is ultimately held to be valid in spite of errors in execution, addressing such a challenge may be costly and difficult.  A potential challenge is best addressed by executing the will properly in the first instance.  A later amendment to a will is called a codicil and must be signed with the same formalities. Be cautious in using a codicil because, if there are ambiguities between its provisions and the prior will it amends, problems can ensue. In some states, the will may refer to a memorandum that distributes certain items of tangible personal property, such as furniture, jewelry, and automobiles, which may be changed from time to time without the formalities of a will. Even if such a memorandum is permitted in your state, proceed with caution.  This type of separate document can create potential confusion or challenges if it is inconsistent with the terms of the will or prepared in a haphazard manner.


5. what about Jointly Owned Property?

​​​If you own property with another person as joint tenants with right of survivorship, that is, not as tenants in common, the property will pass directly to the remaining joint tenant upon your death and will not be a part of your probate estate governed by your will (or the state’s laws of intestacy if you have no will). It is important to note that whether property is part of your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes.

Frequently, people (particularly in older age) will title bank accounts or securities in the names of themselves and one or more children or trusted friends as joint tenants with right of survivorship. This is sometimes done as a matter of convenience to give the joint tenant access to accounts to pay bills.  It is important to realize that the ownership of property in this fashion often leads to unexpected or unwanted results. Disputes, including litigation, are common between the estate of the original owner and the surviving joint tenant as to whether the survivor's name was added as a matter of convenience or management or whether a gift was intended. The planning built into a well-drawn will may be partially or completely thwarted by an inadvertently created joint tenancy that passes property to a beneficiary by operation of law, rather than under the terms of the will. In some instances, a power of attorney document giving the trusted person the power to act on your behalf as your agent with regard to the account in order to pay bills will achieve your intended goal without disrupting your intended plans regarding to whom the account will ultimately pass.

Many of these problems also are applicable to institutional revocable trusts and "pay on death" forms of ownership of bank, broker, and mutual fund accounts and savings bonds. Effective planning requires knowledge of the consequences of each property interest and technique.

In many instances, consumers prepare wills believing that the will governs who will inherit their assets when in fact, the title (ownership) of various accounts or real property, for example, as joint tenants, or beneficiary designations for IRAs, life insurance and certain other assets control the distribution of most or even all assets. This is why merely addressing your will is rarely sufficient to accomplish your goals.


6. What are Trusts?
​Trusts are legal arrangements that can provide incredible flexibility for the ownership of certain assets, thereby enabling you and your heirs to achieve a number of significant personal goals that cannot be achieved otherwise. The term trust describes the holding of property by a trustee, which may be one or more persons or a corporate trust company or bank, in accordance with the provisions of a contract, the written trust instrument, for the benefit of one or more persons called beneficiaries. The trustee is the legal owner of the trust property, and the beneficiaries are the equitable owners of the trust property.  A person may be both a trustee and a beneficiary of the same trust.

If you create a trust, you are described as the trust's grantor or settlor. A trust created by a will is called a testamentary trust, and the trust provisions for such a trust are contained in your will. A trust created during your lifetime is called a living trust or an inter vivos trust, and the trust provisions are contained in the trust agreement or declaration. The provisions of a living trust or inter vivos trust (rather than your will or state law default rules) usually will determine what happens to the property in the trust upon your death.

A trust created during lifetime may be revocable, which means it may be revoked or changed by the settlor, or irrevocable, which means it cannot be revoked or changed by the settlor.  Either type of trust may be designed to accomplish the purposes of property management, assistance to the settlor in the event of physical or mental incapacity, and disposition of property after the death of the settlor of the trust with the least involvement possible by the probate (surrogate or orphan’s) court.

Trusts are not only for the wealthy. Many young parents with limited assets choose to create trusts either during life or in their wills for the benefit of their children in case both parents die before all their children have reached an age deemed by the parents to indicate sufficient maturity to handle property (which often is older than the age of majority under state law). Trusts permits the trust assets to be held as a single undivided fund to be used for the support and education of minor children according to their respective needs, with eventual division of the trust among the children when the youngest has reached a specified age. This type of arrangement has an obvious advantage over an inflexible division of property among children of different ages without regard to their level of maturity or individual needs at the time of such distribution.​


7. What if I have Annuities and/or Retirement Benefits?

You may be entitled to receive some type of retirement benefit under an employee benefit plan offered by your employer or have an Individual Retirement Account (IRA) or a Roth-IRA. Typically, a deferred compensation or retirement benefit plan provides for the payment of certain benefits to beneficiaries designated by the employee in the event of the employee's death before retirement age. After retirement, the employee may elect a benefit option that will continue payments after his or her death to one or more of the designated beneficiaries. It is sometimes advantageous to have these plan assets paid to trusts, but naming a trust as the beneficiary of such plan assets raises a number of complex income tax, estate planning and other issues. Naming the surviving spouse as the beneficiary of certain retirement plans and spousal annuities is mandated by law and may be waived only with his or her properly signed consent. Competent estate planning counsel is crucial.

If you are entitled to start receiving retirement benefits during your lifetime, the various payment options will be treated differently for income tax purposes. You should seek competent advice as to the payment options available under your retirement plan and the tax consequences of each.


8. I have Life Insurance...

If you own life insurance on your own life, you may either
(a) designate one or more beneficiaries to receive the insurance proceeds upon your death, or
(b) make the proceeds payable to your probate estate or to a trust created by you during your lifetime or by your will.
If insurance proceeds are payable to your estate, they will be distributed as part of your general estate in accordance with the terms of your will or, if you die without a will, according to the applicable state laws of intestate succession. If the proceeds are payable to a trust, they will be held and distributed in the same manner as the other trust assets and may be protected from creditors' claims. Insurance proceeds that are payable directly to a minor child generally will necessitate the court appointment of a legal guardian or conservator. This can be avoided by naming a trust or custodial account under the state transfers-to-minors law as the beneficiary. Trusts often are used for insurance proceeds, even if the trust beneficiary is not a minor, to protect the assets from a creditors, divorce, to provide income tax planning and distribution flexibility, and to provide centralized or professional management of the proceeds. 

Insurance plays an important role in financial, retirement and estate planning and should be coordinated with all other aspects of your estate plan. The laws pertaining to the taxability of insurance proceeds are complex, so it is important that all matters pertaining to life insurance be carefully reviewed with your attorney and insurance advisor. For example, your insurance coverage should be reviewed at least every two or three years to assure that the policy is performing as intended, the insurance company remains in solid financial position, and that the ownership of the policy and its beneficiary designations still comport with your wishes.


9. What is The Lawyer's Role on Estate Planning ?

It is easy to be lured by advertisements claiming you can save time and money by drafting your own will or trust using do-it-yourself websites, retail software, or fill-in-the-blank will or trust kits from the bookstore. It is unlikely that these alternatives will generate a suitable plan that accomplishes all of your objectives. Only a qualified trusts and estates lawyer can interpret the myriad laws bearing on property rights, taxes, wills, probate, and trusts. More important, canned programs and forms cannot provide the wide range of legal advice to assure that the form is correct, that assets passing outside of your will or trust are properly handled, that state law nuances are taken into account, or that relevant tax, legal and personal issues are properly addressed.

On the other hand, you can save time and money by preparing for a meeting with your estate planning lawyer. You can organize your information regarding your assets, liabilities, and title arrangements and think about your feelings regarding providing for various family members. Most lawyers practicing in this area have questionnaires that will help you with this process. You should take with you copies of important documents such as previous wills or trusts, powers of attorney, life insurance policies, employment benefits, and prenuptial agreements and divorce decrees.

Not every state requires or allows attorneys to designate a specialty area of practice, which like the medical field is generally known as board certification. The ABA Committee on Specialization maintains information on board certification programs, including links to programs offered by state bar associations and programs approved by the ABA. You should always inquire about the level of experience and qualifications in estate planning when selecting an attorney. Membership in certain bar associations or estate planning organizations often indicates a level of dedication to the estate planning field and a commitment to keeping abreast of the law. For example and again like physicians, becoming a fellow of a professional college such as the American College of Trust and Estate Counsel (ACTEC) generally indicates extensive experience in estate planning as well as substantial service to the profession. Most important, you should choose an attorney in whom you have confidence, either through recommendations from friends or your other professional advisors.

Be sure to ask your attorney about legal fees and see that they are dealt with to your satisfaction in the written agreement between you and your attorney (often referred to as the engagement letter). Most states do not require such a written agreement, but you probably should. As part of its services to the bar and the public, the ACTEC website includes model engagement letters for a wide range of estate planning and related legal matters.

If you are like most people, you have spent most of your lifetime to achieve your personal goals. The advice and direction of your attorney will be essential to implementing an estate plan that both disposes of your assets according to your wishes and meets your other personal objectives. Putting all of that at risk to do your own estate planning might accomplish nothing more than years of estate or trust litigation, costing far more time and money than some of the most elaborate estate plans imaginable.


10. Maybe Do It myself Estate Planning is for me

The phrase “Do it Yourself” evokes images of a weekend trip to the Home Depot, a bruised thumb, and the feeling of satisfaction that comes from a freshly painted room, a repaired deck or a newly-constructed patio planter.  But even the experts at do-it-yourself publications such as This Old House frequently remind us not to delve into projects in the domain of experts such as plumbers, electricians, excavators and the like.  The consequences there -- a broken gas main or electrical shocks -- could have disastrous results.

In recent years, do-it-yourself (“DIY”) providers have emerged in many fields ranging from income tax preparation to estate planning.  These services purport to provide, at low cost, the ability to generate computer-drafted documents that may bear some of the hallmarks of professionally-prepared documents.  While these services provide tools to enable the DIY project, as with the home improvement world, they should be used with caution.

Those who seek to replace proper professional advice with a do-it-yourself online document in complex fields like estate planning should understand the effects of their actions.  One should bear in mind that even those with fairly sophisticated skills think twice before venturing beyond their area of expertise.  Consider eminent Judge Rifkind's observation on the subject of tax law that “after 50 years of practice, I would no more have the audacity to formulate my own tax return than I would engage in open heart surgery.”[1]

These concerns prompted the American Bar Association Section of Real Property Trust & Estate Law (the “Section”) to designate this Task Force to evaluate the use of DIY methods in estate planning.  The Task Force has considered a number of issues, including the reasons why DIY options may be inadequate or incomplete for many individuals.  The Task Force is reviewing much of the commentary on DIY estate planning and will publish a more detailed report in the future.  This Preliminary Commentary identifies some of the many concerns identified by the Task Force.


a)The Emergence of Internet-Based DIY Tools
The list of DIY legal providers continues to grow.  LegalZoom may be the most widely advertised of all DIY providers.  Other providers include Lawdepot.com; LawyerAhead; RocketLawyer; Nolo; Corporate Filing Solutions Made Easy; BusinessRocket.net; We The People; Standard Legal, and others.[2]

DIY providers promote themselves by charging low rates for documents that ordinarily would cost much more if produced by an attorney.  For example, LegalZoom charges $69 to prepare a Will. LegalZoom has provided services to over 500,000 clients.[3]As a result, DIY estate planning has gained attention in the national media including The New York Times[4] and Consumer Reports, as well as legal periodicals.[5]  Questions have arisen as to whether DIY legal providers are engaged in the unauthorized practice of law.  LegalZoom alone has been sued in at least three states (Missouri, North Carolina and Connecticut) for violating those states’ unauthorized practice of law statutes.[6]

As some attorneys have noted, perhaps the greatest danger of preparing one’s estate plan with LegalZoom or other DIY legal providers is that they lull clients into a false sense of security.


b)Is DIY for You?

​​Given the recent media attention focused on DIY estate planning, a person might ask himself:   “Should I do my own Will?”

In some limited circumstances, it may be appropriate to do so.  For example, if a person has modest assets in his name alone, and desires to leave them to his closest surviving relative, it may be appropriate and cost-effective to use an online service.  But for individuals with even slightly more complicated circumstances, creating a Will online creates risk  -- risk in an area that will have lasting consequences.

Historically, what we now casually describe as a “Will” carried the more somber label “Last Will and Testament.”  That label accurately conveys the importance that should be afforded such instruments -- a Will is one of the few human acts that survives death.  It carries a legacy that can have lasting financial and emotional consequences on those who matter most -- our loved ones.  Mistakes made in the drafting of such an important document can profoundly alter familial relationships, leaving our family members at best confused or disappointed and at worst locked in hostile litigation.

Consider one example. A New Jersey resident opted to purchase -- surely at a nominal cost -- a Will form kit.  He carefully handwrote his intended dispositions into the form document.  He did not have it properly witnessed.  Undoubtedly believing he had completed his “simple Will” properly, he signed it and then apparently committed suicide.  His heirs, however, eventually paid for his efforts.  In the ensuing lawsuit (Matter of Will of Feree),[8]a New Jersey trial court struggled to find a way to interpret and give effect to his handwritten additions to the form.  Under New Jersey probate law, the language on the pre-printed form was not admissible because the Will was not properly signed by Mr. Feree (most states require a Will to be signed in the presence of two witnesses, a few even require three witnesses).  The Court’s effort to salvage Mr. Feree’s work -- and the ensuing trip to the New Jersey appellate court -- almost certainly cost the family tens of thousands of dollars or more.  At least Mr. Feree never saw that enormous expenditure -- he passed away believing he had saved money.[9]


c)Will Your DIY Plan Work When You are Gone?

A Will must meet requirements for probate, properly make dispositions of the estate, address the payment of debts, taxes and other obligations, appoint fiduciaries to administer the estate and potentially guardians for minor children, and achieve all of that without creating litigation or hostility among the beneficiaries.  A person who drafts his own Will must bear in mind that the critical test of his efforts will occur after his death.  At that point, his voice has been forever silenced.  If he does prepares his Will on his own, it’s likely no one -- or at least no person who is not seen as biased due to his financial interest in the outcome -- will be able to explain his intentions.


d)Why Retain an Experienced Estate Planning Lawyer?

The Task Force urges those who may engage in DIY estate planning to evaluate the following considerations before taking the leap and drafting his own estate planning documents:


The Role of the Counselor-at-Law: An estate planning lawyer provides more than technical expertise in drafting complicated documents.  Most have extensive experience in counseling clients in these most intimate decisions.  For example, most have helped couples sift through the various possible options in selecting a guardian for the couple’s most-cherished “possession” -- their minor children.  That decision often seems simple, but the “ideal” guardian candidate may have a less than ideal spouse, lack financial experience, or otherwise be unable or unwilling to serve.  Spouses may disagree as to the choice of guardian. They may need advice to understand a guardian’s role.  The Counselor-at-Law plays an important role in these and many other estate planning discussions.


The “Simple Plan”: Consider the elderly woman with a seemingly simple plan: she has two loving, adult children (one who lives with her) and two assets:  a house worth $300,000 and a bank account worth the same.  Her simple solution?  She’ll keep both children happy by dividing things equally.  So she drafts a Will and leaves the house to her son and the account to her daughter.  She tucks the Will in her desk and lives happily ever after.  Her children?  They are not so happy.  After her death, they realize Mom spent down her bank accounts to pay her bills so there is nothing left for the daughter.  One can envision the son (who gets the house) telling the daughter he feels sorry for her, but Mom wanted him to have the house.  The daughter, of course, concludes Mom’s intent was defeated.  She sues the brother.[10]With proper counseling and advice, that suit could have been avoided if Mom’s intentions were properly ascertained and expressed.


The Failure to Properly State Dispositions: A proper Will must clearly state the testamentary intent to dispose of assets.  The language used must be dispositive in nature (a letter of instruction or words stating a person’s general preferences will not suffice).  Those who draft their own Wills run the risk of using words, terms or descriptions that could fail to make effective dispositions.  The failure to use words of “testamentary intention” could void the Will, just as the use of “precatory” language (i.e., “I would like”) could render the dispositions unenforceable.[11]


Who Will Explain Your Intentions? If a dispute arises, the court will often hear a swirl of allegations as to the decedent’s intentions from interested family members.  Who will the court believe?  Divining the intention of the deceased may be among the most difficult tasks conferred upon any judge.  Many may look for the voice of the person who died in a person who had conversations with him while he was alive about what he intended after his death, and does not benefit from the Will -- that, more often than not, is an estate planning lawyer.


Who Will Keep Your Will Safe? Many states presume a Will was revoked if the person who died possessed the original Will and it cannot be located at death.[12]Given that presumption, it often makes sense to leave the original Will in the possession of the estate planning lawyer who could document custody and control of it.  With that type of evidence – even if the lawyer loses it – it may be possible to probate a copy of the Will as no presumption of revocation would apply.  An individual may not be aware, much less follow, these arcane rules that might preclude probate.


Tax Guidance: State and federal taxes imposed on estates change often and have become increasingly complicated.  Congress recently increased the federal estate tax exemption to $5 million, but that lasts only through the end of 2012.  Meanwhile many States, looking for revenue to plug budget gaps, have adopted their own estate tax structures with much lower exemptions (ranging from a few hundred thousand to as much as $5 million).  Careful planning needs to be done to realize the potential tax savings that can be achieved through a detailed understanding of numerous options available to reduce estate taxes.


Coordinating Probate and Non-Probate Assets: A Will generally governs the disposition of assets held in the decedent’s name alone.  Thus, one can draft a Will only to learn that it will have little impact if most of the assets are governed by beneficiary designations or other arrangements.  Lawyers sometimes call assets governed by a Will “Probate Assets.”  Assets that are governed by a contract, joint ownership, a beneficiary designation or similar arrangement may be called “Non-Probate Assets” (these can include IRAs, 401ks,  joint bank accounts, homes, other real estate and insurance).  For many Americans, most of their assets may fall into these categories (all of which may be included in their “taxable estate” for estate tax purposes).  An experienced estate lawyer can guide the client through this process, helping to ensure that the client’s desired objectives comport with the structure of his assets.


Births, Deaths, Marriage, Divorce and Incapacity: Each of these events may profoundly alter a person’s life.  They also may alter the desired disposition of an estate.  For example, in some States that have adopted variations of the Uniform Probate Code, divorce may automatically revoke dispositions to the former spouse.  But who takes the former spouse’s share?  That share might pass to minor children outright such that a court may have to appoint a guardian (possibly the former spouse) to hold and administer the assets.  Or will the court hold those assets itself?  The same types of considerations apply to all other changes in family relationships.  A proper estate plan should address these contingencies.

Special Needs Planning: What if a child suffers from a learning disability, incapacity or is vulnerable to the influence of people seeking to grab his inheritance?  What will happen to inherited funds if a child is disabled and requires governmental assistance such as Medicaid?  For parents with special needs children, or anyone who desires to leave assets to a child with special needs, specialized trust planning may be required to avoid risking a special needs child’s public benefits. In fact, one estate planning attorney noted that when he informed a LegalZoom representative that he had a disabled child, the representative advised him that he needed a supplemental needs trust which LegalZoom did not provide and that he would need to contact an attorney to prepare one for him.[13] It is doubtful that a non-attorney would be aware of the need for such specialized planning but that omission could be costly.

Same Sex Couples and Other Relationships:
Given the ever-changing legal framework governing same-sex couples and unmarried couples, it is important to have updated advice on the manner in which estate planning arrangements can be implemented.  In many States, a same-sex partner or even spouse may not have rights if his partner dies before him, so any rights must be defined in carefully-analyzed estate planning documents.  The same considerations apply to unmarried cohabitants, whose rights, if any, may be very limited without proper planning.


Post Death Planning: Proper estate planning may require prompt consideration of post-death planning options, such as the ability for an heir to “disclaim” property (have the property pass as though the heir died before the person who died).  Those options require the advice of an experienced attorney, but more importantly, individuals who may need to invoke such options need to understand that they must act quickly and should not take custody or control of the assets if they hope to achieve a valid tax-qualified disclaimer under the tax law.

Preparing for Estate Administration: The estate planning attorney often represents the executors or trustees (if any) in the administration of the estate.  This may create significant advantages, since the estate planning attorney is familiar with decedent’s assets, family issues and other factors that may allow for a speedy administration of the estate.

Multi-State and International Issues:
Significant differences in law can exist among the various states.  Some estate planning requires consideration of international issues (approximately 20% of the U.S. population is first generation or second generation with at least one foreign-born parent).  This may increase the risk that a Will prepared through a DIY provider will not properly account for laws that govern assets situated in another state or country.[14]


11. ​Choosing Between DIY and Professional Advice  -- Controlling the Costs

Notwithstanding the foregoing concerns, the Task Force understands that for certain people, the cost of doing a Will may be prohibitive.  Before an individual reaches that conclusion, however, he should explore the potential costs of engaging proper counsel to assist in estate planning and the benefits (for example, peace of mind) that come with such assistance.  Moreover, the individual should bear in mind his own ability to reduce the cost of estate planning by preparing for the initial meeting.  This would include, for example, preparing a full list of all assets and liabilities, a detailed evaluation of potential beneficiaries, the collection of relevant documents (deeds, beneficiary designations, prior Wills, property valuations and perhaps other documents such as divorce decrees and the like).  Taking the time to do that homework before the initial estate planning consultation can reduce costs.

For these reasons, the Task Force is developing resources for those who are considering their estate planning options.  In the coming months, the Task Force will post on the Section’s website various materials to aid those considering estate planning.  Those materials will include checklists to prepare for an estate planning meeting as well as a list of frequently-asked questions regarding estate planning.  The Section also invites those considering estate planning to contact some of its approximate 30,000 members who practice in the Trust and Estates area, with lawyers in virtually every locale in the Country.  The costs of estate planning vary by location and experience of the lawyer -- but the needs of each individual are as varied as the lawyers who can serve him.


12.  Conclusion
The Task Force expects to further study the role of DIY estate planning.  While it has identified a number of concerns, it recognizes that some people -- principally motivated by cost concerns -- will do their own Wills.  The Task force anticipates that in certain situations involving the disposition of modest assets among close relatives, the DIY plan may work effectively.  Yet the Task Force perceives many other situations where a person may have a false sense of security that he has addressed the disposition of his estate, only to have it discovered (after death) that important issues were not addressed.  This could lead to increased difficulty and expense in the administration of the estate, with the prospect of litigation among the intended objects of the decedent’s dispositions.  For those reasons, the Task Force concludes, at least on preliminary review, that the average person should proceed with caution in using DIY estate planning as a substitute for a proper, professionally-drafted plan.


Footnotes
[1] Simon H. Rifkind, Are We Asking Too Much of Our Courts?, 15 Judge's J. 43 (1976).

[2] See Jonathan G. Blattmachr, “Looking Back and Looking Ahead: Preparing Your Practice for the Future: Do Not Get Behind the Change Curve” 45 Heckerling Institute on Estate Planning, 18-1,18-16;18-17.

[3] See Blattmachr, infra. However, there are hidden costs in preparing an estate plan with LegalZoom. The cost of preparing an estate plan for a married couple on Legal Zoom increases once one includes all the documents, for both spouses, which form part of a standard estate plan including Wills, Durable Powers of Attorney, Living Wills and Health Care Proxies (a/k/a Financial Powers of Attorney and Health Care Powers of Attorney). The total cost then is approximately $300.00 for a married couple.

[4] T.S. Bernard, In Using Software to Write a Will, a Lawyer Is Still Helpful, N.Y. Times, September 10, 2010.

[5] Wendy S. Goffe and Rochelle Haller, From Zoom to Doom?  Risks of Do-it-Yourself Estate Planning, 38 Estate Planning Magazine 27 (April 2011). 

[6] See Blattmachr, infra; and http://inventblog.com/uspto/legalzoom-sued-for-unauthorized-practice-of-law.html.

[7] See, http://www.texaswillsandtrustslaw.com/2010/05/24/legalzoom-vs-lawyer-what-you-dont-know-can-hurt-you/. 

[8] 369 N.J. Super. 136 (Ch. Div. 2003), aff’d, 369 N.J. Super. 1 (App. Div. 2004).

[9] Many states have left open the chance for probate of such defective documents by enacting statutes that permit probate of a “writing intended as a will.”  See, e.g., N.J.S.A. 3B:3-3.  Those statutes, however, require proof of “clear and convincing” evidence at a hearing to achieve probate.  This undoubtedly is an uncertain and expensive proposition.

[10] Cf. Matter of Estate of Tateo, 338 N.J. Super. 121 (App. Div. 2001).

[11] In Matter of Will of Smith, 108 N.J. 257, 262(1987) the court declined probate of a writing that lacked testamentary intent finding it was a letter of instruction regarding matters that would have been addressed in a Will.

[12] Matter of Will of Sapery, 28 N.J. 599 (1956).

[13] Blattmachr, infra.

[14] See, http:/www.census.gov/newsroom/releases/archive/foreignbornpopulation/cb10-159.html.


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