The Perils of Do-It-Yourself Estate Planning

Have you ever considered writing your own will?  You may think to yourself, "I know where I want all my assets to go – how hard can it be?"  It may be tempting and cheaper in the short run than working with an attorney, but with do-it-yourself estate planning kits or software, the old adage is true – you really do "get what you pay for."  Don't let a pre-packaged, one-size-fits-all will kit jeopardize the life you've worked so hard to build for yourself, your business, or your loved ones.

When it comes to something as important as planning for the future of your assets and the loved ones you will leave behind, one size definitely does not fit all.  A thorough and comprehensive estate plan is so much more than just a package of fill-in-the-blank forms from your local office supply store or website you’ve seen advertised on television.  Even a small mistake or oversight can be devastating:  under Illinois law, for example, signing your estate plan documents without  the appropriate number of competent witnesses can invalidate your will and leave you in the same position – or worse – than if you had never prepared a will at all.  At your death your property would pass to your “heirs” under the Illinois law of intestacy.  Under these laws, the State determines who your “heirs” are, and what portion of your assets they will receive upon your death.  Unfortunately, the state’s “estate plan” for you often will not achieve the results you would have chosen for your assets and your surviving loved ones.   

If, for instance, you are married and have children at the time of your death, the law provides that your assets will be divided into two shares:  one-half to your surviving spouse and one-half to be split equally among your children.  There are numerous problems with this result.  First, your surviving spouse would not be able to use the children’s one-half of the assets for his or her own care and living expenses – clearly the wrong result if your spouse was planning to rely on those assets for his or her support.  Instead, the children’s share of the assets could be used only for the children’s benefit.  This means that the children could demand regular accountings from the surviving parent (or other guardian) and could even sue for breach of fiduciary duty.  Next – and even more importantly – upon reaching age 18, each child would have full access to his or her share of the assets.  So, rather than using the money responsibly to fund his college education, your 18-year-old son would be free to blow it all on a Ferrari.

You also may not know that a comprehensive estate plan is much more than just a will.  Even a thorough, properly-prepared will only governs the distribution of your assets after your death. To truly plan for your future, though, you must also anticipate how to plan for any period when you could be incapacitated due to injury, illness, or advanced age.  Under Illinois law, you do this planning with Powers of Attorney for Healthcare and Property.  Many “estate plan” kits and websites don’t include these important documents – a major oversight, considering that, statistically, at age 30 you are twice as likely to become incapacitated as you are to die.

Estate planning is much more than just filling out a set of forms that you buy online.  Developing a comprehensive plan for your future and the future of the assets and the loved ones you will ultimately leave behind is much easier – and safer – with the guidance of a professional.  By working with an experienced estate planning attorney, you get more than just a bunch of documents – you’ll have the peace of mind of knowing it’s been done right.

Have a legal question you'd like to see answered in a future article? Post it in the Comments section below, or email it to me at hgwalser@lavellelaw.com

Disclaimer: This article provides legal information of a general nature and is not intended as legal advice, nor does it create an attorney-client relationship with any person or group of persons. Should you wish to obtain legal advice concerning your particular situation, contact an attorney.