Writing Your Own Will in California


A day does not go by that a potential client doesn’t ask why they should use an attorney to prepare their estate planning documents. They always say, “can’t I just use a computer program, or a paralegal, or a form at the stationary store?” The answer is usually, “yes, you can do that,” but should you? I usually say “yes, you can spend $19.95 and get a will or a trust computer program, but should you risk it when the estate taxes could be several hundred thousand dollars?”

It is true that much of the tangible part of an estate plan that you will see produced by your attorney is generated in a word processing program, the so called “fill in the blank estate plan.” However, it is not as simple as just “filling in the blanks.” First of all I review each page of your estate plan to make sure all the relevant pages are there as computers can have glitches and make mistakes. Furthermore, the documents you receive, although the most tangible evidence of the estate plan you have prepared for yourselves, is only a small part of what a qualified estate planning attorney does for you and your family.

In actuality a qualified estate planning attorney is analyzing your family make-up, your asset mix, and what unique situations are involved with you and your family. Although there are similarities there is no way to use a “cookie cutter” approach; everybody has different needs and desires. This becomes more and more prevalent as we Americans continue to get divorced at a greater rate, get re-married at older and older ages, and have children out of wedlock. All these factors, along with a whole host of others, makes each estate plan require individual care and craftsmanship.

Then there is the work an estate planning attorney does above and beyond the basic documents. Much of it is very simple, assuming you know what to do, like notifying banks and financial institutions of changes, filling out change of beneficiary forms properly, and recording new deeds if that is necessary. A good example of a pitfall in many people’s estate plans is naming minor children as beneficiary of a life insurance policy or IRA benefit. If that child is still a minor when the parents die it could be necessary to appoint a guardian ad litem, in court, before the company will distribute the money; this can be a costly requirement that is easy to avoid with proper planning. A full service estate plan will help you with the paperwork and will help you avoid the “guardian ad litem” pitfall and many other that people fall into.

In addition to all of this, there are some technical legal points that might need detailed analysis and in some cases advanced legal research. Some areas of concern for clients include the proper titling of real estate and the proper division of community and separate property. An error here can result in huge problems at death or if divorce is to occur. For example, as people marry later in life they often have assets they bring into the marriage and sometimes children as well. If you are not careful, your children from a first marriage can end up being completely left out of an estate plan, while the children of your second marriage can end up “cashing in” on your assets after your second spouse dies. In addition to the hurt feelings that can develop there are also can be huge lawsuits which can bankrupt an estate, your natural children, and your family of the second marriage.

The feeling that a computer generated will is enough because you don’t have enough assets for a full fledged estate plan can be a serious oversight on your part. First of all, estate plans are not necessarily costly to put together. Additionally, the less one has the more important it is to use those limited resources wisely. Also, planning is based on your family needs not economics. Thus, we discuss your care, personal family characteristics, and your personal desires; things a computer program or person not trained in estate planning can do. Additionally, minimizing costs at death may be even more important in a small estate. For example, a guardian may be required to file annual accountings with the court if a minor child is receiving benefits. This can be avoided with proper planning. Lastly, there are a lot of questions that need to be answered by you, that an untrained attorney or paralegal might not know to ask. For example, the taxes payable after death might depend on transactions you make during life as well as at death so that the proper planning and discussion can greatly reduce or even eliminate taxes after death.

Additionally, if you choose to use a computer program, a stationary store form, a paralegal, or even a non-estate planning attorney, make sure they are up to date on the current state of the law. I attend an average of 25 hours of continuing education each year in the estate planning field. This is in addition to the numerous magazines, newsletters, and other publications I read on estate planning topics. Even if you don’t use Meissner, Joseph, Palley & Ruggles, please do choose a qualified estate planning attorney who is very familiar with the California Probate Code and the Federal Estate, Gift and Income tax system. Although we all hate to spend money we don’t have to… most of us hate even more giving money to the government unnecessarily or having our intentions not properly carried out after death.  The bottom line is nobody will know your estate plan is inadequate until it’s too late….