Do I need an attorney to set up an estate plan?
Determining the need for attorney adviceUnless you have the experience to do so, and or are very confident in your ability to follow detailed instructions, you would not perform medical surgery yourself, or attempt to repair the brakes on your car. While estate planning is not brain surgery, there could be serious ramifications, if your estate plan is not executed properly.
If you have relatively simple planning needs, and your estate is not large, it is possible that you can plan your own estate, without legal guidance. One important consideration is the peace of mind that you will have, knowing that your affairs will be handled in the manner you instruct. If you cannot be absolutely sure of this, then no amount of monetary savings will be worth it.
If there are minor children involved, then it is even more important to ensure that your estate plan is set up correctly. Even if the estate plan is prepared using online tools, it may be worth the nominal fees involved in hiring an attorney to review things.
If minors are involvedWhen minors are, (or may be) intended beneficiaries of the estate, then it is generally best to establish a trust. This is a relatively complicated estate plan, and the trust must be properly funded, in order to achieve the desired objectives. Because of the added level of complexity and the need to be absolutely certain the trust is correctly established, when a trust is needed, it is far more important to consult with an attorney. Online tools and sample forms may be helpful, in this situation. But there is no substitute for the advice of a qualified estate planning attorney, and the cost is worth it, when you are trying to protect minor children.
If there are no minor beneficiaries and a Trust is not requiredIf probate avoidance is the primary objective, there are a number of ways to avoid probate, without the need to establish a trust. Beneficiary designations can be made for most types of assets. These designations maintain full control for the owner during his or her lifetime, and title passes automatically to the beneficiaries, upon the owner's death. There is no way to designate beneficiaries for real estate, under current Michigan law. We usually recommend the use of Quit Claims Deeds to pass title to real estate to beneficiaries, upon the owner's death. If properly set up, probate will not be required.
Because deeds are a one page document and relatively uncomplicated, as long as the client is comfortable doing so, he or she can often prepare these documents without the need for an attorney. We generally recommend the use of "Ladybird Deeds", which allow the client to retain full control during their lifetime. We do not recommend adding people as joint tenants during lifetime.
Other necessary documentsI strongly believe that every person should have a General Durable Power of Attorney in place. This form names someone to handle the client's affairs if he or she becomes incapacitated. It eliminates the need for probate appointment of a guardian and or conservator, and the expenses related to those positions. There are many different forms available online. As long as the form clearly provides that it is "durable" (so that it remains in effect if the person becomes incapacitated), takes effect only upon incapacity, and can be revoked by the client, then it is probably sufficient.
If the client desires the "Agent" to be able to make gifts, then this must be specifically mentioned in the form, in order for the Agent to have this power. It is also desirable to give the Agent the power to make health care and medical treatment decisions, as well.
Once the Power of Attorney has been signed, copies should be provided to banks, doctors and anyone else who may need to deal with the Agent.
The bottom lineAn attorney is a salesman, selling you their time and their expertise. A good attorney should be willing to meet with you at no charge, to give you an opportunity to determine whether or not you need the attorney's services. This initial consultation should give you the opportunity to ask any questions you may have and for you to determine whether or not the attorney seems competent to assist you. If you do not feel comfortable with the attorney, then you will not realize the peace of mind you should feel, that your estate plan will be carried out to your satisfaction.
If you believe that you have sufficient knowledge and expertise to draft your own documents, or to review and analyze online forms, then you may not need what the attorney is selling you. You have worked your entire life to accumulate your assets. You need to feel comfortable that what you want to happen will take place, and that the documents you have prepared will do what you want, how you want it to be done.