Attributed to Richard Serra, Bruce Shneier, and Douglas Rushkoff, among others, is the phrase: “If something is free, then you are the product.”
We’ve all become accustomed to expecting free access to all the information we could ever want online, so when we come across a person or company that wants to be paid for their service, the first few times can be jarring. The awareness of what we are giving up every time we access a social media account or enter our address or birthday to sign up for something for ‘free’ continues to grow. It appears this tension has yet to become apparent in the consideration of estate planning costs.
With the abundance of AI models, YouTube videos, and faceless usernames online falling over themselves to provide ‘advice’ as to what to do or not do with your estate planning, it can be deceivingly easy to think one can just do it themselves. The host of ‘lawyer reviewed’ or ‘100 per cent legally valid’ self-prepared offerings has only further diluted the value prospective will makers place on sitting in front of a real lawyer and discussing what they want to happen when they have died. If your asset or family structure is straightforward, why should you bother paying a lawyer to draft your documents?
I should disclose that, in my practice, I draft wills, enduring powers of attorney and guardianship, binding death benefit nominations, mutual will agreements, and deeds every day, so I have a vested interest in clients who understand the value of a well-reasoned, intentionally structured, and comprehensive estate plan. My practice includes acting for executors or administrators as they navigate their administration, so I also stand to benefit when a person passes away with an inadequately considered will, no will, or, more so, a wrongly executed or poorly structured will.
For some, the thought of paying a solicitor to draft their estate planning documents falls into the ‘avoidable cost’ bucket. Unfortunately, the costs of unwinding or remedying the issues that subpar documents create for those left behind are absolutely in the ‘avoidable cost’ bucket and are almost always significantly higher than the cost of properly drafting them in the first place.
So, why should you see a real lawyer in person to discuss your documents?
The lawyer should ask you questions you haven’t considered.
It is not uncommon for people to come into the initial meeting with a full picture in mind, only to find that their asset or family structure makes their wishes impossible to outwork. A great estate lawyer views the drafting of documents as a collaborative effort between the lawyer and the client.
It is a two-way street: the lawyer should enquire about your current assets and family structure, your goals, your wishes for the distribution of your estate after you’ve died, and at least one (or more) backup beneficiaries if anyone you name in your will dies before you.
This means that your documents should still be valid as your relationships evolve and change (and there will be fewer overall drafting fees, as you won’t need a full suite of documents drafted every few years).
The lawyer works for you. They don’t have any vested interest in how you draft your documents.
Many providers of cheap or free wills often want something in return for their efforts. This can range from a friendly ‘consider providing us a gift or including us as a substituted beneficiary of your estate’ to a requirement that they be appointed as your executor (with the provision to charge fees to administer your estate).
It’s your estate, and it’s your will. I often draft wills that nominate charities or not-for-profits as beneficiaries. An independent lawyer will ensure you are aware of the consequences of your instructions, but they will not actively suggest a decision you should make. If “it depends” is the most often uttered phrase in the office, then “I can’t tell you what you should decide” comes in second.
You pay the lawyer for their time and expertise to give effect to your wishes. Once your documents are drafted, you can continue to work with that lawyer, and they will have insight into your arrangements for increased efficiency. Or you can go elsewhere in the future for your updates and not owe the not-for-profit or government department that drafted your cheap or free will anything further.
You can be confident the documents will be correctly drafted and executed.
The self-made will kit or online template costs the same amount of money regardless of whether it results in a correctly signed will. Unfortunately, the differences in the consequences to your estate are much more significant.
I have seen a will that named an executor but had no beneficiaries. Invalid. Another appointed a sole executor who died before the will maker with no substitute. More complicated (and costly) application. In a third will, the will maker had signed the ‘witness’ field, and the witness had signed the ‘testator’ field. The costs to explain this to the court in the application could have been avoided if a lawyer had been engaged to assist. There are plenty of witnesses in a lawyer’s office, and most will not consider their job over until your will is fully signed (and many offer safe custody of those documents, too).
What now?
If you’ve got something in place, get a reputable lawyer to review your current documents. Getting another lawyer to review your documents periodically ensures they are fit for purpose. It is the lawyer’s job to ensure you understand what you’re signing. They are the one (presumably) with the law degree, and that’s where the cost comes from. The first place to start would be to ask family or friends who they worked with and reach out (if they say the lawyer was helpful), or to search online for independently reviewed lawyers.
If the lawyer reviews your documents and you find/decide they are not suitable (which happens in approximately one-third of the reviews I undertake), then the cost to fix them while you are still alive will pale in comparison to doing so after you’ve died (if it’s even possible).
While remedial work is often lucrative and intellectually stimulating for the lawyers, the best outcome is to get your documents right in the first instance. There is plenty of work to be done to draft documents without having to undo errors of well-meaning will makers who thought they were doing the right thing by taking the drafting of their estate plan into their own hands.
If you are considering drafting your own will, or a will with a company or person offering it for free or at a very low cost, you would benefit from pausing to consider the statement at the top of this article: “If this is not costing me financially now, who will pay and when?”
Do you have any interesting stories about wills you’ve reviewed or errors you’ve come across? Is there anything I missed, or anything else you’d like to see? I would love to hear from you via email at ross@rossmcdougall.com or find me on LinkedIn.
