Lawyers are asked these questions surprisingly often. Frequently we respond with a flippant remark, like “sure -- and you can also perform your own brain surgery.” That kind of comeback, however satisfying to the lawyer, doesn’t really address the layperson’s questions, and we ought to be prepared to demonstrate the real value of professional advice in preparation of an estate plan. Besides, brain surgery is obviously more a life and death matter than -- oh, wait a minute, estate planning IS a matter of life and death, isn’t it?

Yes, you can prepare your own estate plan. You can make the decision about whether it would be wise to create a revocable living trust (or some other sort of trust), and you can prepare the documents that commonly accompany a lawyer-prepared estate plan (like powers of attorney for health care and financial matters, for instance). The truth is that you will probably do just fine. The key to that answer is the word “probably.”

Why would you NOT consult a competent attorney to help you with your estate planning? Perhaps you have a morbid fear of attorneys, or believe that we are only out to get your money. Perhaps you don’t begrudge us our fees but you simply prefer not to spend your money on professional advice. Perhaps you think it is too hard to find a competent lawyer, or that it is too hard to separate out the lawyer’s self-interest from his or her unbiased advice.

It is true that lawyers charge for the time they spend helping clients. That’s how we make a living, pay our mortgages, put our children through college. Most of us also think we actually help people, and we usually get reinforced in that view by the clients who do come to see us. They usually feel like they have received value from our services. But maybe you will be the exception.

Pretty frequently when clients learn how much their estate planning is going to cost, their reaction is "that's all?" Well, they usually don't say it quite like that (they probably worry that if they did the lawyer might increase the price), but it is often clear that they are surprised at the low cost of estate planning services. Of course that is not always true -- some lawyers are more expensive than others, and some estate plans are more complicated than the clients think they are. But before deciding to go it alone, talk to a lawyer or two about how much the cost will actually be. You just might be surprised.

How do you find a competent lawyer? That's not hard at all. Not every lawyer who works with your business, handles your children's misdemeanor and traffic tickets or takes care of your divorce and child support issues is eminently qualified to handle your estate planning. Of course, we are tempted to observe that even a lawyer who does not practice in the area is likely to be more familiar with the legal issues than you are, but we'd rather take the positive approach: it's just not hard to find a competent lawyer. Try asking neighbors and friends. Look at the National Academy of Elder Law Attorneys, or the American College of Trust and Estate Counsel, or your state's certified specialists in estate planning (not every state has a certification process, but Arizona and a number of other states do). All of those are good resources. We at Fleming & Curti, PLC, are partial to law firms with excellent internet presences (no surprise there). Make a list of half a dozen prospects, and then contact them. Prepare for many of the lawyers you contact to be too busy to take on a new client right away -- when that happens, ask for referrals. Notice how often the names you hear from those lawyers also appear on your list of prospects from those other sources.

Many -- but not all -- lawyers give no-charge initial consultations (we at Fleming & Curti, PLC do not, but you can see our fee schedule online). If your chosen lawyer does offer no-charge initial consultations, you can make a no-risk evaluation person-to-person. If they do not, you still might find that the information you collect, and the feeling you get for the lawyer, is worth the usually modest cost of the initial consultation.

Is the reason you resist talking to an attorney some morbid fear or distrust of lawyers? Know this: if you make your estate plan without the help of a competent attorney, your heirs are much more likely to have to spend much more time with (and money on) lawyers after your death. In fact, you will even have increased the likelihood of lawyers being involved in your affairs during your life, especially if you ever become incapacitated.

All right, let's assume that none of this persuades you. For whatever reason, you want to be the rugged individualist and take care of your estate planning without the professional help of an attorney. You know the risks, and you just don't think our advice to get good help applies to you. How do you go about it? [CAUTION: OUR ADVICE IS THAT YOU SHOULD NOT TRY THIS AT HOME -- at least not until you read the last paragraph below.]

Start by reading. There is lots of literature out there about estate planning. Be cautious: if your literature tells you that everyone needs a living trust (or that no one does), or that you absolutely do not need legal help at all, or that your best bet is to call an individual or organization that also happens to sell insurance, or has its headquarters out of state, or shows up in unflattering ways in a simple internet search, then you are getting questionable -- and possibly positively dangerous -- advice.

Go ahead and go to seminars. There are nuggets of good information at the seminars. Go in the door muttering to yourself "I will not sign up at the end of this seminar. I will not sign up at the end of this seminar." Maintain that position throughout. Take good notes. Do not get frightened (that is what the presenter most fervently hopes for). Talk to someone about the concepts and tactics you heard at the seminar -- oh, that's right, you weren't going to get professional legal help, were you?

Ask your friends and neighbors. Don't (as one of our fathers-in-law did) ask them for a copy of their estate planning documents so you can type your name in place of theirs, but do ask them why they created a living trust, or didn't, or why they put their children's names on their house, or didn't. They might have a couple other good ideas that you hadn't thought about. If you begin to get the notion that there are a lot of ideas you hadn't thought about, that's yet another indication that you really should be talking to a professional. Are you tired of us suggesting that yet?

When it comes time to actually prepare documents, you might do somewhat better with software than with form-books and kits. Why? Because the software usually asks you some preliminary questions and then eliminates some of the possibilities. We remember the fellow who bought a form book and filled out the form in the back for a "trust for a single person" for himself and his wife. Lots of errors occasioned just by trying to make "I" into "us" and related changes -- including no provisions for what happened on the first death (it was his, so his widow had to deal with the mess). Still, even well-written software is unlikely to suggest alternates you might want to consider, or discuss with you the strengths, weaknesses and limitations of your choice(s).

Can't you just handwrite your will and skip the cost, nuisance and wordiness of lawyers? Yes, you can. In some states (including Arizona) a will written in your handwriting, and signed by you, may be valid even if not witnessed. This, however, is the very worst idea you might have. Almost every "holographic" will (that is the term for those handwritten do-it-yourself wills) we have seen has resulted in extensive and expensive legal proceedings. You may think creating a trust for your minor children on the back of a cocktail napkin is a grand idea, but you should know that the one we are administering right now resulted in tens of thousands of dollars of unnecessary administrative expenses. The very bright fellow who wrote it did not save any legal fees.

Should you do any of this? No, if your primary purpose is just to avoid lawyers. We are fond of saying that if everyone will just prepare their estate plans without legal assistance, our children will attend much better colleges. We are being flippant again -- our children's education has been and will be just fine, but our point is that do-it-yourself estate planners, though they often get things right, often manage to make their mistakes spectacular.

But wait. Before we leave this thought, consider this: if you prepare yourself as if you were going to do your own estate planning, and then go see a competent attorney, you may have the best result of all. You will actually understand what the attorney is telling you. You will be able to gauge whether the attorney knows his or her stuff. You will speed up the process of estate planning. You will be an informed consumer -- and most of us (or at least the ones of us you want to be your attorney) actually love to see informed consumers. 

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