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Is Legal Advice Really Necessary To Prepare A Will?

The story is told of a small town lawyer in Mississippi who botched every deed he ever drew. The other two lawyers in town were talking one day, and one was complaining about how terrible it was that the third lawyer was messing up land titles around the county. The older, wiser lawyer said, “That’s okay, somebody is going to get paid a lot of money one day to straighten all of that out.”

I think about that story when I think about the LegalZoom phenomenon. LegalZoom and its kind operate on the assumption (partly true) that much of what lawyers do is routine and repetitive and does not require a great deal of specialized knowledge. So why pay an attorney for advice you may not need? Indeed, I have had more than one client who sought my services merely as a typist, and was not interested in the least bit of legal advice.

LegalZoom and similar products work by using a pre-scripted questionnaire, and based on the answers, it spits out a document. If the right questions are not asked, it won’t give you the will you really want or need. I have, in the past, used similar type products that are designed for use by attorneys. In my experience, the questions were not always right, and some questions that should have been asked, weren’t. In about 90% of cases, the software produced a workable first draft, but then a fair amount of editing was required to meet the client’s goals.

The real question is whether the advice of an attorney is necessary in the preparation of a will. In some cases, it may not be, and a LegalZoom will may work out just fine. But the LegalZoom customer, not being an attorney himself, will not know whether advice is needed or not. LegalZoom has a customer service staff that you can call to ask questions, but they are not lawyers and are prohibited by law from answering any questions regarding the legal effect of a decision you make, and from giving any kind of legal advice. About all they can legally tell you is that “most of our customers answer the question this way.” The effect is that the customer sometimes leaves with a false sense of well-being, not knowing that their document is, in some cases, a ticking time bomb.

For example, if you have a spouse and children from a prior marriage, you may be tempted to opt for leaving your estate to your spouse, and to your children if your spouse fails to survive you. This is a common disposition. If your spouse survives you, your spouse can leave the property he or she inherited from you to your spouse’s children, or his or her new spouse, thus effectively disinheriting your own children. An estate planning lawyer is trained to question you about that kind of thing. It’s the issue that is never raised that can cause the most trouble.

Self-help in the area of drafting wills is not new, nor are the sometimes disastrous consequences (except for the lawyers) that flow from it, as the following humorous selections from a poem written in the 16th century by Lord Neaves illustrates:

Ye lawyers who live upon litigants’ fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate’er your degree,
Plain stuff or Queen’s Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession’s best friends;
So we’ll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.
….
You had better pay toll when you take to the road,
Than attempt by a by-way to reach your abode;
You had better employ a conveyancer’s hand
Than encounter the risk that your will shouldn’t stand.
From the broad beaten track when the traveler strays,
He may land in a bog or be lost in a maze;
And the law, when defied, will avenge itself still
on the man and the woman who make their own will.
The more things change, the more they stay the same.

Copyright 2018 Wells, Marble, and Hurst, PLLC. All rights reserved.