I think everyone should use a qualified lawyer for every legal decision in their lives, without exception.
The idea of my dear readers walking through their day without an attorney there to point out all of the little legal potholes of life is terrifying!
However, I started this blog because I know lawyers are expensive (law school is expensive, malpractice insurance is expensive, running an office is expensive, mandatory continuing legal eduction is expensive) and you need, you deserve inexpensive access to law. (I also think you deserve inexpensive access to medicine but, really, what do I know, I’m just some liberal from California who should probably be charging more for her services.)
In a way forms exist for the same reason my blog exists: to make legal information available to people who might not otherwise be able to get it. But, like my blog, a form is very different from legal advice.
If you see a wall full of dusty old law books in a lawyer’s office be certain that they are worthless to the lawyer other than aesthetic value. Law is not static. It is not just that the legislature changes the statues regularly. Every time a judge makes a decision on a case (think of the millions of court cases going on every day all around the country) that decision has the potential to affect the law as it applies your particular situation. Lawyers spend much of their day researching to make sure the client’s situation is not affected by any recent statutory changes or court rulings. They pay large portions of their monthly expenses to various companies that specialize in helping lawyers keep current on the law. These companies do things like organize the thousands of rulings according to key words so lawyers can search for them easily and read them.
Yes, when drafting lawyers will use “tried and true” language that has been tested and upheld in the courts, but the lawyer knows that the wording was tested in the courts in the particular fact pattern of what those litigants were dealing with — it may be completely wrong for your situation. It may have been fine yesterday but be completely wrong today because a judge or legislature changed the law again. You would not believe how much time I spend reading other people’s court cases to see if they might affect what my client wants to do in a contract. Also, and you may not have realized this, but the constant changing of laws means that you have the responsibility of taking your old documents back to your attorney to have them reviewed. With estate plans you should do this annually.
Your attorney does not have the responsibility of contacting you every time a change in law affects your documents. However, many attorneys offer a discount for this important service if you did your estate planning with them.
My basic point is that when you pay for a lawyer, you’re not paying for words written on a paper, you’re paying for someone who understands what those words mean and how they apply to you. Someone who can explain the options to you, or if you’re not interested (despite how fascinating it all is), someone who knows your situation and chooses the best words to use and then holds your hand through the process if making those words useful to you (creating not just a contract, but a valid contract).
A form is generic and may or may not do what you are assuming it will do. Check out my blog post on per stirpes for an example of something your form chose for you that you may not want.
When there are problems with the forms, especially in the estate planning department, the problems are often invisible until it’s too late. Sometimes the biggest problem is that the document required additional legal steps (like a witnessed signature) that the user was unaware of. Not everyone is perfect about reading the instructions.
The most common problem I encounter with do-it-yourself revocable living trusts is that the person did not understand how to transfer the assets into the trust. A trust only controls the assets that are transferred to it. Just listing the assets in a schedule A is not sufficient! I wrote a whole post on transferring assets into trusts.
Like most attorneys, I felt apprehensive when I first learned about online legal forms that could be somewhat “personalized.” My worry was that they would give a greater (perhaps false) sense of security than a paper form from a stationary store. On the other hand, after working in a rural area for most of my career, I know that hiring a full service legal team is just not an option for everyone and these do-it-yourself companies are providing a service for people that would otherwise have to go without. So I was open minded about them.
However, after time and time again of seeing problems, I have formed the opinion that a do-it-yourself revocable living trust is just not worth the risks.
Using a statutory will, power of attorney, or advanced health care directive form, however, may be very useful for a person who can’t afford an attorney.
In fact, I give them away for free on my website at www.roxanneolson.com/forms. But I still recommend that you have an attorney review it. Even those forms can be easily completed incorrectly.
So, here is my tip: if you use a form have an attorney review it. The attorney might not agree to accept liability for any problems with the form, but they will take the time to explain the different terms you “chose” and their effect. That way, you know whether or not you purchased a bargain.
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