Beware: The Perils of Generic Wills and Trusts

Imagine you are buying a piece of undeveloped land with the goal of building your dream home.

Now ask yourself this: given the choice between (a) choosing a prefabricated house and (b) working with an architect to design your dream home, which do you think would produce the most desirable result?

In all likelihood, you chose option (b). Why? Because the land, like all real estate, has its own unique features, contours and sightlines. When working with an architect, you can take all of the nuances of the land into account and as highly trained professionals, architects diligently strive to stay up to date on current design, technology information, and local law and you can be confident that they will incorporate this advanced knowledge into your dream home. On the other hand, if you were to simply choose a prefabricated house, there would be no customization, a danger of outdated design and technology, and no consideration of applicable local laws. The prefabricated house would almost certainly result in a less-than-ideal end-product.

The same logic can be applied to the creation of wills and trusts!

Those seeking to create a will or trust have an option to either (a) select a prefabricated document from a book or website, or (b) work with a professional estate planning attorney. Again, (b) is by far more likely to create the ideal result, because an estate planning attorney will evaluate your personal goals and use experience, current information, creativity, and flexibility in order to create the plan that best accomplishes those goals. Are you estranged from a family member? Do you have a family member you love very much, but who is limited by a disease, a mental illness or an addiction? Do you have a complicated family structure including step-parents, step-children, half-siblings, etc.? An estate planning attorney can consider your unique circumstances when creating an overall estate plan.

Further, a person may want a portion of his estate, small or large, to go to a particular institution, cause, or to an individual outside of their family. Here, it is purely a matter of personal preference and emotional connection. An estate planning attorney can help draft wills and trusts that will ensure that your passions are reflected.

Finally, an estate planning attorney can inquire about your non-probate assets, such as life insurance policies, 401K plans and joint property. The attorney can help create a comprehensive plan by explaining the law regarding the way these types of assets are transferred upon death; because they are not governed by a Will at all.

Besides tailoring an estate plan to your individual needs, an attorney who specializes in estate planning can also employ various planning tools to minimize income, gift and estate tax consequences of your disposition goals. When using prefabricated documents, there are little, if any, considerations of the tax consequences upon asset transfers. Additionally, the tax laws are constantly in flux and a generic document may not be up-to-date to take advantage of any current tax benefits or to avoid any tax burdens.

Estate planning attorneys also understand that life does not always go as planned, and can offer guidance for contingencies, such as the designation of alternates to serve as guardians or trustees. The estate planning attorney can also be an asset when you experience a life changing event that will require a revision to your plan. The attorney will understand what is in place and be able to determine what needs to be altered or amended in order to reflect the changes in your life.

It is important to recognize that estate planning attorneys make it their business to keep current with any changes to the law that may impact estate planning strategies. By attending seminars, joining practice groups and reading estate planning specific publications, these attorneys know whenever there is a development in the law that will impact current clients and future beneficiaries.

Additionally, an estate planning attorney can take precautions to ensure that any plan created will be legally enforceable. Every State has its own requirements with respect to document execution. An estate planning attorney will know the requirements for the proper execution of wills and trust documents in the specific jurisdiction and take care to adhere to the requirements. After execution, an estate planning attorney can also provide safe and reliable storage for estate planning documents. These attorneys understand the importance of these documents and file and store them accordingly.

Working with an estate planning attorney is superior to using a generic document from a book or website because it ensures that the most desirable end product will be created. Although employing an attorney who specializes in estate planning may be more costly than selecting a previously prepared document from a book or website, the money is well spent to ensure that you create the estate plan that is perfect for you. If you want to build your dream home, you would be wise to hire an architect and if you want the perfect estate plan, engage an estate planning attorney.

For questions, comments or additional information, please contact a member of our Estates & Trusts Group, at or via phone at 215.495.6500.