Estate Planning Documents Created Using Websites

By: Paul J. Schwab, Esquire

Individuals may choose to use internet sites to prepare articles of incorporation, powers of attorney, wills and other important documents, as the sites cost less than an attorney. I am not a supporter, however, of using the internet for estate planning documents.

Everyone wants value for their money. Attorneys add significant value in the estate planning process.  Other estate planning attorneys and I, at times, fail to fully convey that value to the public and potential clients.

There are a number of important choices made in estate planning documents. The same answer is not best for every person. A good estate planner gives a full and clear explanation of the alternatives and the benefits and potential drawbacks of each and asks and answers follow up questions. If this information is available on the website, will the user take the time to read it and be able to intelligently choose between the options?

Further, if there is a question about the document or an institution is reluctant to honor it, is the individual or her family in a better position to get a prompt answer based on her state’s law or a positive result from the attorney that prepared the document or the website?

Many times during the estate planning process an attorney will make suggestions concerning insurance based on the client’s circumstances. Does the document preparation website provide independent information about life, automobile, and long term care insurance? An attorney can also explain how joint ownership and beneficiary designations on life insurance, retirement accounts and other assets avoid probate and “trump” what is in the Will.

I heard from an intelligent woman who, for cost reasons, had used an internet website to prepare her power of attorney.  She sent it to me with the question of whether she needed to record it with the Court. In some states powers of attorney may as a matter of course be filed in court. This is not the practice in Maryland; powers of attorney are filed when a recorded document is executed on someone’s behalf pursuant to the power of attorney. For example, when a deed or mortgage is signed under a power of attorney, the title company will record the power of attorney before the deed or mortgage. This enables the person examining title to see that the person signing as power of attorney had the authority to do it.

More importantly, the power of attorney was not properly completed. It had unclear language about when the named individual could act for her. The trusted family member most likely would not be able to act for her when the need arose, and the family would have to ask a court to appoint a guardian for her. Further, the gifting language was too limited and likely would cause issue.

Another woman showed me a “Will” prepared from an internet site. She had a living child and a deceased son with a 21 year-old daughter. Because she did not have a relationship with her granddaughter, the woman wanted her granddaughter to only receive a small amount from her estate. The “Will”, however, did not satisfy Maryland’s requirements so her son and granddaughter would have split her assets.

Furthermore, even if valid, administration under the “Will” would probably have required court involvement.  It appointed her son’s wife personal representative and directed the personal representative to distribute the estate based on the wishes that the mother-in-law “had made known to her”. Is the granddaughter going to be happy with how the daughter-in-law remembers or implements those wishes?

It costs more than using a website to have an attorney prepare your will and other important work, but the saying, “you get what you pay for” is holds truth in estate planning.

Mr. Schwab heads the estate planning department at Azrael, Franz, Schwab & Lipowitz. Whether your needs include the simplest will or the most sophisticated and comprehensive estate plan, Mr. Schwab and the estate planning attorneys at Azrael Franz have the skill and experience required to effectively advise our clients. Please contact Mr. Schwab with your estate planning questions.