This post is part two of my series on DIY estate planning. The Wall Street Journal article that prompted me to write this post features a discussion on using websites and apps, like Fabric, Legal Zoom, or Tomorrow to create estate planning documents instead of hiring a lawyer to draft them. The write makes the case that you don't always need to go to a lawyer to get your affairs in order. I wanted to interrogate this idea a little more.
I work in an industry which pushes towards automation, because document creation is potentially a repetitive task that can be automated by a computer. Fabric, Legal Zoom, and Tomorrow hired lawyers to create the documents. So, what's the difference if you use one of their apps instead of hiring your own lawyer? After all, lawyers created them; isn't that good enough? And with the COVID-19 pandemic, we all know how important it is to get our planning done right away.
The apps certainly offer speed and immediate gratification. They also offer a sense of accomplishment. If you can get your documents printed, signed, and witnessed in a day or two, then you can tell yourself you are all set. Working with a lawyer on your plan takes longer than using the app. It could be a couple of weeks or months before your lawyer has your work done and ready for your signature. I understand the appeal of using the app.
Let's assume for the moment that the documents created with the app are adequate for your needs.
What the app can't give you is a complete understanding of your estate plan. A good lawyer shows you how all the pieces fit together. She listens. She asks questions that force you to question your initial assumptions about what you want. She provides a cost benefit analysis of your options. When you are ready to sign, she explains the legalese, so you know what you're signing. She also coordinates the signing so that your documents are properly witnessed and notarized, pursuant to legal requirements (called "formalities".) She may even keep duplicate originals for safekeeping.
Also, the app can't instruct you how to carry out your plan. Even if the app has some educational resources, estate and trust administration usually requires a human touch. Many facets of trust administration, especially for special needs trusts, require experience and judgment.
Now let's assume that the documents are not adequate. Trusts and Estates law is state-specific. The will template that the app uses may not work well for the state you live in.
The bigger concern with using the app is that you are doing your own initial legal analysis. But you don't know what you don't know. You might create a will with the app that doesn't include language that you need based on your specific circumstances.
Or you might create a will and a trust and assume you're done, but if the type of will that you made isn't suited for the type of trust that you made, then you will likely run into issues down the road.
Or, you might create a living will but not a health care proxy. But in Massachusetts, health care proxies are legally binding but living wills are not.
As you can see, there are multiple pitfalls when you use an app for your estate planning.
As a result, I have difficulty imagining a scenario where a client would be better off with the app than with a personal lawyer. It's usually possible for your lawyer to expedite document drafts for emergencies. I have had success with telephone consultations and signings using social distancing protocols, so even in today's COVID-19 atmosphere, you should be able to get the help you need from your lawyer. There's no good substitute for one-on-one legal counsel.