Verifying Your Intentions: Why an Estate Planning Attorney is Needed to Make Sure Your Wishes are Carried Out

March 11, 2019

 

 

Most people who are thinking about making a will or trust assume that they only thing that an estate planning attorney does is draft the documents.  But, this is far from the truth, and anyone who decides to create their own estate plan will miss out on a few essential benefits.


Independent Confirmation of Capacity and Intention


Capacity and intention are essential elements of a valid estate plan.  If your estate plan has unequal or unusual distribution to heirs, then your estate planning attorney may want you to confirm in writing the reasons.  This can take the form of a letter placed in your legal file explaining the background facts and that you are making those choices of your own free will.


Undue Influence


This can become important if one of the heirs were ever to contest the estate plan or make a claim of undue influence by another party.  The letter and your attorney’s involvement can act as verification for the court that your plan reflects your true intentions.  This is also why you should prepare and sign your estate planning documents alone (or with your spouse) with your attorney, so that no claim of undue influence can be made based on the presence of any heirs.


Capacity


The other part of this is the issue of capacity.  If an heir were to claim that you did not have the mental capacity to make sound choices or decisions, then the will or trust could be invalid.  So, if you simply made a will or trust on your own it is much easier to contest it, while having an attorney involved can help establish your understanding of the plan and its effect on your assets and  heirs.


Avoiding Unintended Consequences


The other benefit of using an attorney is their knowledge of how various laws may affect the outcome of your estate plan.  This could include minimizing taxes, avoiding probate and ensuring that assets are distributed as smoothly as possible.  This only comes with years of experience preparing hundreds of estate plans for their clients.


It is tempting to think that one can save some money and simply use a form will or trust, and not engage an attorney.  But, you do run the risk that your estate plan may not achieve your goals without an objective third party to assist you in the planning and drafting of necessary documents.
 

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