5 Estate Planning Weaknesses

Estate planning is confusing and many people want to avoid lawyers. Many advisors fall into a trap of trying to oblige the client. This can lead to several weaknesses in estate planning, which I’ll explain.

Estate planners, unlike lawyers, cannot tell you what to do when things go wrong. They must refer you to your legal advisor or help you find experienced legal help.

The minute an estate dispute starts, estate planners must step aside. Financial advisors, insurance agents or accountants cannot give advice with respect to an estate dispute.

You need an approach that considers how estate planning can go wrong. Here are some of the weaknesses you may not be aware of as yet.

5 Estate Planning Weaknesses

1. Planners Are Not Authorized to Give Legal Advice

Their own malpractice insurance does not cover this advice. You should not rely on them to avoid legal problems created by poor planning.

2. Communications Between a Lawyer and Client are Privileged

Whatever you tell your lawyer is considered absolutely protected by privilege. There are exceptions, however. You should be aware that your instructions and lawyer’s file can be produced in a will contest proceeding.

It is essential that you obtain legal advice from an estate lawyer who will document you wishes. Lawyers use their notes to support your will and estate plan.

If you choose to cut a child out of an inheritance, your lawyer’s notes must explain why.

3. Using a Will Kit is Dangerous

I have seen financial planners actually prepare client estate planning documents. They think something is better than nothing. This is wrong and dangerous. Estate planners can be sued by beneficiaries who suffer losses because of such failures.

4. Do-It-Yourself Planning

If clients prepare their own estate planning documents, these must comply with the same minimum legal requirements of the law. Lack of legal training is not excuse. It is a losing proposition for a client to gamble. You must understand the law as it relates to:

•    income tax

•    estates

•    family

•    property

•    trust and will law, or

•    how to prepare estate planning documents such as a will, power of attorney or trust

Paralegals and will kits, do-it-yourself books, forms or computer software that is interactive suffer from the same weakness.

Although some software can offer general information on common estate planning topics, this is not legal advice.

Dangers arise when someone assists a client in filling out the forms. This could constitute an unauthorized practice of law. Estate planners are not qualified or insured for this.

5. Spouses: The Good, the Bad and the Divorced

Financial planners cannot provide a legal opinion on the validity of a divorce, cohabitation, marriage or separation agreement. You need a lawyer to review such documents to confirm their validity.

A contract you signed 32 years ago, when you were penniless, may be ineffective. It may not prevent a second spouse from making any claims to your estate. You need legal advice.

We will see multiple spouses making claims in the future against an estate. These planning situations are not matters on which your estate planner can comment.

Summary

When doing your estate planning, all the pieces of the puzzle must fit. Ask your estate advisor to help you find a lawyer for your journey. Clients need estate lawyers to help them.

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