Pitfalls of Do-It-Yourself Estate Planning: Should I Use a DIY Trust?

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POSTED ON: February 3, 2024


Should I Use a DIY Trust?

Estate planning is a critical component of financial stability, ensuring that your wishes are honored in life and after death. In this digital age, online platforms offering do-it-yourself legal documentation have gained popularity, tempting many to wonder, "Should I use a DIY trust?" While these services seem convenient and cost-effective, they often fall drastically short of a reliable estate plan created by a seasoned attorney. Using a DIY trust can lead to numerous legal complications, emotional distress and financial loss.

Do You Need a Will or a Living Trust? Understanding the Difference

A living trust and a will serve distinct purposes in an estate plan. A will outlines asset distribution and care for minor children, while a revocable living trust provides detailed control over one's assets, potentially both during one's lifetime and after one's death. It's crucial to comprehend these nuances as you consider a DIY approach to avoid probate and ensure that your assets are managed and distributed according to your wishes.

What are the Disadvantages of a Do-It-Yourself Living Trust?

In estate planning, the complexities involved in creating a trust are not to be underestimated. A trust involves detailed legal stipulations that DIY platforms may not accommodate.

The allure of a DIY living trust is often oversimplified, overshadowing the potential disadvantages. One primary concern is the legal validity of your trust. Standardized online forms may not cater to specific state laws or personal circumstances, jeopardizing the intended asset transfer to your beneficiaries. While amendable, a revocable living trust requires thorough execution—something DIY options may not support.

It’s a scenario estate planning attorneys see all too often: well-intentioned individuals using online forms, expecting them to cover all bases, only to discover they lead to unintended consequences. This underscores the risks involved in the question, "Should I use a DIY trust?" and why the answer leans heavily toward seeking professional guidance.


The Perils of DIY Trusts: A Cautionary Tale

In the digital age, where information and 'quick fix' tools are plentiful, many individuals wonder, "Should I use a DIY trust?" This question, often influenced by the allure of convenience and cost-saving, overlooks the potential hazards lurking behind do-it-yourself legal documentation. The field of estate planning, encompassing wills, trusts and legacy planning, demands a nuanced understanding that far exceeds a standard form's capabilities.

Why Considering a DIY Trust Could Be Your Downfall

At face value, the proposition of creating your own living trust without leaving your home or office seems enticing. However, akin to self-diagnosing and treating a medical condition, navigating the legal intricacies of estate planning by yourself is fraught with danger. Just as you would trust a doctor's years of training and expertise for your health, the same prudence should apply to legal matters, particularly when pondering, "Should I use a DIY trust?"

Established estate planning attorneys have witnessed first-hand the complications and heartache that can arise from well-intentioned but poorly executed DIY legal documents.

The Hidden Costs of Convenience

Platforms like LegalZoom or Rocket Lawyer, despite their slick advertising and promises of ease, cannot replace the tailored advice of a legal professional. These services, while accessible, offer a one-size-fits-all approach that seldom accommodates the unique circumstances of each individual or family.

The Real-Life Consequences of a DIY Approach

Consider the sobering story of Ann Aldridge, who utilized a form will to dictate the distribution of her assets upon death. Her decision, seemingly straightforward at the time, unraveled into a complex legal debacle due to the absence of a residuary clause—a fundamental provision that designates who inherits unspecified assets.

Ann's story took a turn when she inherited her predeceased sister's estate, unintentionally excluding these assets from her original will. Upon her death, an intense legal battle ensued between her surviving brother and nieces, leading to unforeseen legal costs and emotional distress.

This distressing situation escalated to the Florida Supreme Court, which ultimately ruled against Ann's apparent wishes, primarily due to the inadequacies of her DIY will. The justice presiding over the case remarked that it stood as a "cautionary tale," underscoring the inherent dangers of using pre-printed forms or online tools without appropriate legal guidance.


More Than Just a Will: Comprehensive Planning

Estate planning is multifaceted and extends beyond merely drafting a will. It encompasses various essential documents, such as a power of attorney, health care power of attorney, living will and possibly multiple trusts, depending on your assets and wishes. Often overlooked in the DIY process, these critical documents ensure that you're comprehensively protected.

For instance, a tailored Power of Attorney (POA) is paramount, allowing you to designate someone trustworthy to manage your affairs if you cannot do so. Online forms for a POA are notoriously generic and might not hold up legally, especially since requirements can vary significantly by state.

Similarly, a Health Care Power of Attorney and Living Will are indispensable for outlining your medical preferences should you become incapacitated. These personalized directives prevent family confusion and legal hurdles during emotionally charged moments. Unfortunately, a standard form downloaded online might not reflect your specific desires, leading to potential disputes costing thousands of dollars or legal invalidity.

Creating the Trust: What Do You Need to Know?

Creating a trust involves several intricate steps and legal considerations. From choosing between a revocable living trust and an irrevocable trust to deciding on the specific provisions, it's not a one-size-fits-all matter. You'll need to consider beneficiaries, potential incapacitation, asset distribution and appointing a fiduciary with the utmost care. This process can be fraught with complications in a DIY context, where personalized guidance is lacking.

Do You Want to Avoid Probate?

Avoiding probate is often a driving factor for those considering a living trust. Probate can be time-consuming, expensive and emotionally taxing for your heirs. A properly constructed living trust facilitates a smoother transfer of assets, bypassing probate court. DIY trusts may fall short in addressing all procedural specifics, such as properly titling assets in the trust or understanding the role of grantor and trustee.

Avoiding Court-Ordered Guardianship

When essential documents, like the Power of Attorney or Health Care Directives, are deemed invalid or absent, your family might face the arduous task of obtaining court-ordered guardianship to make decisions on your behalf. This process isn't just expensive; it's also invasive and can strip you of personal liberties if your incapacitation is deemed temporary.

What Other Types of Pitfalls of Do-It-Yourself Plans Could Arise?

Missteps with Transfer on Death Provisions

Many DIY enthusiasts also gravitate toward creating Payable on Death (POD) or Transfer on Death (TOD) accounts. While these seem straightforward, they're rife with pitfalls. For example, complications arise if a designated beneficiary doesn't outlive the account or property owner, particularly if financial institutions restrict such provisions.

Real Estate Complications and Tax Nightmares

DIY attempts can become particularly treacherous when dealing with real estate. Adding children to property titles can create a legal quagmire if heirs disagree on property decisions or face personal financial difficulties, encumbering the property with liens.

Moreover, DIY trusts often go wrong regarding tax implications, potentially subjecting estates to excessive taxation or penalties. This oversight alone can deplete an estate's value, contrary to the original intention of preserving assets.

In Conclusion: The Prudent Path Forward

Given these considerations, "Should I use a DIY trust?" becomes a question of risk. Are you willing to gamble with your assets and your family's future? While it may seem like a cost-saving measure initially, the reality is that DIY estate planning can cost more in the long run – not just in financial terms, but in the emotional turmoil it can cause your loved ones.

The prudent path forward is clear: engaging an experienced estate planning attorney—their expertise safeguards against the legal, familial and financial pitfalls of a one-size-fits-all approach. With professional estate planning, you're not just drafting documents; you're ensuring peace of mind, protection and clarity for your family's future.

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