DIY ESTATE PLANNING – Who can I hold responsible for failed plans? NO ONE!
This article is part of a series of articles addressing various issues with DIY planning. An introduction to this topic was published on February 12, 2020.
Now, we address perhaps the most troubling aspect of the DIY estate planning arrangement – no one can be held responsible if the plan does not work!!! As a condition of using a DIY service, the customer must generally acknowledge that the service is not a law firm, is not providing legal advice, and cannot be held legally responsible for bad results! This disclaimer may be buried in the fine print and thus ignored by most. Courts have often upheld these provisions, leaving the customer (or more often a deceased customer’s grieving family) with no recourse. At best, a failed plan results in unnecessary expenses to correct the flaws. At worst, it can cause delayed attention to the customer’s medical and financial needs, unintended disposition of assets, unnecessary tax burdens, etc.
The likelihood of a failed estate plan is much lower if prepared by a competent attorney. Furthermore, if an attorney’s error causes a bad outcome, the client and the client’s family have legal recourse – a malpractice claim against the attorney!!! Even if the attorney cannot correct the flaw (e.g., if the attorney is deceased or the firm is dissolved), most lawyers carry significant malpractice insurance that can make the family whole.
This is one of many reasons we recommend you consult with a licensed attorney to prepare your estate planning documents rather than opting for a DIY service.