More than half of Americans die without a will or estate plan, according to the American Bar Association, which serves only to enrich probate lawyers and tax authorities. Without these plans, the state transfers the assets to the deceased’s closest relatives and must decide where young children and their property are sent if the other parent is unfit to do so. Estate lawyers can help ensure that these decisions are thoughtfully made well in advance.
Here's how to determine whether or not an estate planning lawyer is needed or whether alternatives are available. (For more, see: How to Explain Estate Planning to Clients.)
Who Needs It
The federal estate tax exemption—or death tax—is the amount that an individual can leave to heirs without having to pay federal estate taxes of 40%. With the exemption reaching $5.43 million in 2015, the vast majority of people with a net worth below that amount may feel that estate planning isn’t necessary. A simple will is thought to effectively distribute assets when trusts and other tax shelters aren’t needed to avoid the steep estate tax rate.
In reality, estate planning is more than simply paying taxes on an estate. It’s about ensuring that finances are properly handled, healthcare decisions are made in advance, and heirs receive fair amounts of assets when someone passes away.
Those that don’t properly plan ahead rely on the state to distribute their assets in a very generic way and someone other than themselves to manage their healthcare decisions when they can no longer do so. Often times, these issues can lead to high probate lawyer costs as heirs argue over who gets what and greater amounts of taxes get paid to the government, which is a lose-lose situation that could have been easily avoided. (For more, see: 6 Estate Planning Must-Haves.)
Doing It Yourself
There are many options for do-it-yourself estate planning on the Internet, through non-profit organizations, and in books and other resources. For instance, LegalZoom provides last wills and testaments, living trusts, living wills, powers of attorney and other documents that comprise estate planning for a reasonable fee that’s less than an estate planning lawyer would charge for drawing up the same paperwork.
All of these documents can be drawn up and executed without an estate planning attorney from a legal standpoint. Of course, the risk associated with do-it-yourself paperwork is properly filling out the documents. (For more, see: 5 Ways to Mess Up Estate Planning.)
A good comparison is tax returns. There are free options for filling out tax returns—by printing out 1040s and related documents—as well as online services that make it easier. The trade-off is that a Certified Public Accountant (CPA) is not completing the forms, which means that there’s likely a greater audit risk, particularly for complex returns or inexperienced filers.
Estate planning requires a much more complex series of documents than a tax return does, which means that you might want to think twice before you do it yourself. (For related reading, see: Estate Planning for a Surviving Spouse.)
When Help Is Needed
Estate planning may be simple for those with few assets, no complex financial arrangements, and no complicated family dynamics. In all other cases, the ABA warns that do-it-yourself plans may actually be worse than doing nothing. For instance, improper paperwork could result in a special needs family member losing out on government benefits or an ex-spouse inheriting assets due to improper asset distribution over time.
Wealthy individuals that are subject to the federal estate tax, as well as anyone subject to state estate taxes, should definitely consider hiring an estate planning lawyer in order to explore ways to mitigate tax exposure and maximize inheritance. But, even those without millions in assets could benefit from estate planning lawyers since they can help keep on top of both subtle legalities and family dynamics to ensure no problems surface. (For more, see Estate Planning: 16 Things To Do Before You Die.)
The Bottom Line
Estate planning is an important and often neglected part of financial planning, which can be costly when avoided or done improperly. There are many options for do-it-yourself estate planning that could help those with few assets and simple estates save money. Everyone should at least consider estate planning lawyers in order to avoid any problems and ensure the best possible outcome for their loved ones. (For more, see: 10 Questions to Ask Your Estate Planning Attorney.)