The Risks of Creating Your Own Estate Plan

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September 11, 2022 •  The Estate & Elder Law Center of Southside Virginia, PLLC
Even Consumer Reports suggests working with an experienced estate planning attorney to make sure documents are correctly prepared.

Ah, the risks of DIY when it comes to creating your own estate plan! We call it the 'brother-in-law syndrome': your brother-in-law knows everything, even though he doesn’t. He tells anyone who’ll listen how much money he’s saved by doing things himself. Sadly, it’s the family who has to make things right after the grand do-it-yourself estate plan fails dramatically that he came up with. This is the message from a recent article titled “Dangers of Do-It-Yourself Estate Planning” from Coastal Breeze News.

Online estate planning documents are dangerous for what they leave out. An estate plan prepared by an experienced estate planning attorney takes care of the individual while they are living, as well as taking care of distributing assets after they die. Many online forms are available. However, they are often limited to wills, and an estate plan is far more than just a last will and testament. Our offices regularly receive calls once or twice a week regarding an heir who wants to sue or contest a will for some reason. Often, this is due to the ambiguity of a DIY will!

Don’t let 'cheaper' be your guide, your estate calls for proper planning! To be 'penny-wise and pound-foolish' can further compound problems and complicate an already awful situation when someone becomes incapacitated or passes away, often splitting a family apart.

An estate planning attorney knows you need a will, power of attorney, health care power of attorney, a living will and possibly trusts. These are essential protections needed but are often overlooked by even the most well-meaning do-it-yourselfer.

A Power of Attorney allows you to name a person to manage your personal affairs, if you are incapacitated. It allows your agent to handle your banking, investments, pay bills and take care of your property. There is no one-size-fits-all Power of Attorney, nor should there be. You may wish to give a spouse the power to take over most of your accounts. However, you might also want someone else to be in charge of selling your shares in a business. A Power of Attorney drafted by an estate planning attorney will be created to suit your unique needs and situation. POAs also vary by state, so one purchased online may not be valid in your jurisdiction.

You also need a Health Care Power of Attorney or a Health Care Surrogate. This is a person named to make medical decisions for you, if you are too sick or injured to do so. These documents also vary by state. There’s no guarantee that a general form will be accepted by a healthcare provider. An experienced estate planning attorney will create a valid document!

A Living Will is, and should be, a very personalized document to reflect your wishes for end-of-life care. Some people don’t want any measures taken to keep them alive if they are in a vegetative state, for instance, while others want to be kept alive as long as there is evidence of brain activity. Using a standard ' cookie cutter' form negates your ability to make your wishes known.

If the Power of Attorney, Health Care Power of Attorney or Living Will documents are NOT prepared properly, declared invalid or are missing, the family will need to go to court to obtain a guardianship, which is the legal right to make decisions on your behalf. Guardianships are expensive, time-consuming and intrusive. If your incapacity is temporary, you’ll need to undo the guardianship when you are recovered. Otherwise, you have no legal rights to conduct your own life and affairs! A very unsettling thought.

DIYers are also fond of setting up property and accounts so they are Payable on Death (POD) or Transfer on Death (TOD) accounts. This only works if the beneficiaries outlive the original owner. If the beneficiary dies first, then the asset goes to the beneficiary’s children. Many financial institutions won’t actually allow certain accounts to be set up this way.

The other DIY disaster zone: real estate. Putting children on the title as owners with rights of survivorship sounds like a reasonable solution. However, if the children predecease the original owner, their children will be rightful owners. If one grandchild doesn’t want to sell the property and another grandchild does, things can turn ugly and expensive. If heirs of any generation have creditors, liens may be placed on the property and no sale can happen until the liens are satisfied.

With all of these sleight-of-hand attempts at DIY estate planning comes the end all of ALL problems: taxes.

When children are added to a title, it is considered a gift and the children’s ownership interest is taxed as if they bought into the property for what the parent spent. When the parent dies and the estate is settled, the children have to pay income taxes on the difference between their basis and what the property sells for. It is better if the children inherit the property, as they’d get a step-up in basis and avoid the income tax problem.

Finally, there’s the business of putting all the assets into one child’s name, with the 'understanding', 'handshake' or oral agreement that they’ll do the right thing when the time comes.  The sad fact here is that there’s no legal recourse if the child decides not to share according to the parent’s verbal agreement.

A far easier, less complicated answer is to book a call to discussing make an appointment with an estate planning attorney, have the correct documents created properly and walk away when your brother-in-law starts talking.

Reference: Coastal Breeze News (Aug. 4, 2022) “Dangers of Do-It-Yourself Estate Planning”

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