Low costs and enhanced convenience have led to a surge in popularity for online estate planning tools and services. They typically charge a double-digit fee for preparing items such as wills, estate documents, or trusts, which is a greatly reduced rate compared to that charged by an attorney.

Unfortunately, there are hidden costs and challenges to DIY estate planning. If your estate has any complicated assets or special circumstances needing clarification or additional provisions, expect to pay more than the advertised price. Once all the documents are in for a married couple that needs provisions for durable power of attorney, healthcare proxies, and living wills, the double-digit estate planning expense quickly moves to mid or high triple-digits. 

Without consulting with an experienced estate attorney, you also aren’t likely to know exactly what documents you need for a complete estate plan. Missing or incomplete estate documentation can generate increased time and monetary expenses in probate court, and can create hostilities during litigation that could have otherwise been avoided. Something as simple as a missing witness signature could invalidate your will, landing your family in a probate court fight over your estate.

What DIY Estate Planning Usually Involves

There are many online estate planning platforms, such as LegalZoom, RocketLawyer, Nolo, and others, each with click-and-choose online processing and downloadable templates. These platforms can provide generic estate planning documents, including wills, trusts, powers of attorney, advance health care directives, and beneficiary designations. While completing a DIY estate planning process, you will typically answer questions from a drop-down menu, enter in a few general pieces of information about your scenario, and the platform will generate your document. These documents, however, are typically very basic, suitable for those individuals with simple estate needs and small asset holdings, and can come short for those with more complicated estates.

When creating estate planning documents, these platforms are typically not state-specific, and in California, that can create costly legal headaches. Intestate succession laws in California are complicated, and especially when marital or business property with assets to be administered comes into play, careful diligence must be observed to remain in compliance with California law. 

Most DIY options for estate planning lack California-specific customization, leaving documents that were created through them invalid, causing expensive problems for your beneficiaries or complicated litigation to determine your wishes in the event of a situation requiring a power of attorney or an advance health directive.

Common Problems with DIY Wills and Trusts

DIY wills and trusts often have unclear language or language that contradicts other estate documents, leading to disputes and litigation among your beneficiaries. These DIY documents also don’t provide provisions to ensure the spirit and intention of your wishes are carried out, while documents drafted by an experienced estate attorney can make those distinctions. 

In one such case in New Jersey, Cf. Matter of Estate of Tateo, 338 N.J. Super. 121 (App. Div. 2001), an elderly woman attempted to DIY a will to leave her estate divided between her children – a house to her son and a bank account to her daughter. Due to spending through the bank account funds to provide for her living expenses, there were no funds left to disperse to her daughter at the time of her passing, leaving her daughter without an inheritance. 

Her daughter proceeded to sue the estate over the division of assets, litigation that went through several courts and appeals before being decided. Had she drafted a will with the necessary provisions, should the accounts not have enough funds to pay a beneficiary through the assistance of an estate attorney, the litigation between her children could have been avoided.

Other problems may include:

Missing or Incorrect Legal Formalities

In California, for a will to be legally valid, specific rules must be followed. For a formal will, it must be signed by the testator and witnessed by two individuals who ideally will not benefit from the testator’s estate. These rules are in place to help avoid the appearance of undue influence, conflicts of interest, or manipulation. 

An informal will can also be drafted and signed by the testator, but this can cause issues in probate court, as handwriting analysis to determine whether the signature and writing match previous written works by the testator, and any informal or unclear language will have to be litigated to determine the intentions of the testator.

Trusts are common instruments in estate planning, and need careful handling to avoid probate issues and delays. DIY estate planning platforms make establishing a trust seem straightforward, but funding a trust correctly can be difficult to navigate.

All assets, including business properties, real estate, and financial accounts, must be formally transferred into the trust to allow the trust to administer them. Real estate will have to be deeded into the name of the trust, financial accounts will have to be retitled into the trust, and life insurance policies will either have to be specifically listed as trust assets or have the trust listed as their primary beneficiary. Knowing exactly how assets need to be listed in the trust can be tricky, so let the attorneys at The Dayton Law Firm, P.C. arrange matters for you.

Outdated or Incomplete Provisions

Wills, trusts, and other estate planning documents frequently need to be updated as property ownership, tax and estate laws, or family status, including the addition of new family members through descendants or marriage changes. With an estate attorney assisting you, you can express your wishes and be assured that they will be enacted while staying in accordance with applicable changes to laws.

Provisions are often incomplete in DIY estate planning, failing to administer digital assets such as cryptocurrency, business interests (even minute interests), or beneficiaries who need additional care due to minor status or special needs. Estate planning with an attorney will walk you through all special circumstances, help you recall all items in your estate and assets, and assist you in developing plans to look out for the best interests of all your beneficiaries.

Conflicts with California Community Property Laws

California has stringent community property laws for married couples that can make generic templates ill-advised. Under California law, all property (with a few exceptions) acquired while married, regardless of whose name is on the deed, account, or title, is jointly owned in a 50/50 split. When it comes to wills and estates, each spouse can only leave instructions related to their half of the assets. Without estate planning, a living spouse will likely inherit the full estate of the deceased spouse and then be able to manage the estate as they wish, regardless of the decedent’s wishes.

One exception to this rule is for inherited property, provided it is not commingled into a joint marital account or used to purchase joint property. Consulting with an estate attorney to set up provisions for inherited property to have it remain in your sole control is essential in California estate planning.

Probate and Litigation Risks from DIY Estate Planning

Unclear DIY estate documents, where the provisions for assets and intentions of the testator could be ambiguously construed, often trigger probate instead of avoiding it. Something as simple as stating “my children” instead of directly naming beneficiaries can create legal quicksand that will be costly and time-consuming to navigate.

When beneficiary terms and asset distribution provisions are not clearly stated, your heirs can argue for different interpretations of your intent. This can bring disinherited heirs back into consideration, change how assets are distributed and who receives them, and create contentious relationships among your beneficiaries. 

In the Estate of Duke, 61 Cal.4th 871 (2015), Irving Duke created a holographic (DIY) will that left provisions for the management of his estate and the transfer of assets to two charities if he passed either before or simultaneously with his wife, but neglected to include directions for if he survived her. He also did not update his will with new instructions in the 5 years between his wife’s death and his own. 

Due to the lack of provisions for the specifics of his passing, his heirs at law filed a petition with the probate court, arguing for intestate succession. The courts agreed and passed a summary judgment in favor of Duke’s heirs at law. This case highlights some of the many pitfalls of DIY estate planning, as Irving did not make allowance for all scenarios, and it could be argued that his failure to do so resulted in his intentions for his estate not being

Why California Estate Laws Make DIY Especially Risky

California has strict statutory rules to govern the validity of wills and trusts. For a formal will, it must be signed in the presence of a notary or two witnesses without involvement in your estate (i.e., they will not benefit from your estate or execute your estate). You must also be at least 18 and of sound mind in order to draft a will in the state of California.

A will in California must also be a physical document; it cannot be an electronic document such as a PDF or a video of an oral declaration.

For individuals moving into California from a non-community property state, it is important to be aware that Californian laws will proceed to oversee the trust, and it would be prudent to have a Californian estate attorney, such as those at The Dayton Law Firm, P.C., review your trust to adjust it to comply with California laws while still ensuring your wishes regarding your assets are followed.

Community Property vs. Separate Property

Community property laws in California can be difficult to navigate, especially when assets from pre-marriage, post-separation, inheritances, retirement or pension plans, or pre- or post-nuptial agreements are involved. Online templates and estate planning platforms often cannot manage the nuances involved in community property laws and exceptions to those laws that result in the property being considered separate property in the eyes of California courts.

As an example, retirement and pension fund income can be considered community property income, partially community property, or separate property, and complicated calculations for the Qualified Domestic Relations Orders are required to determine the breakdown for community property allocation.

Local Court Procedures and Filing Rules

Different localities in California have their own requirements for properly filing estate documents in addition to state requirements. An online DIY template typically only includes instructions for state-level requirements, which could create trouble for your executor when they go to lodge your will.

Within 30 days of the testator’s death, the will must be lodged with the superior court in the county where the deceased lived. Each county’s superior court will have its own filing process, and working with an estate attorney will enable you to include specific instructions with your will to reduce the stress and responsibilities of your executor or personal representative.

Lodging the will with the superior court begins the probate process, which will include a probate petition, hearing, and finally division and allocation of assets in California. Any delays in lodging the will can create delays in the probate process, which can have logistic and litigious ramifications for the executor.

When DIY Estate Plans Might Work (and When They Won’t)

DIY estate plans can work, but in very narrow circumstances. For extremely simple estates with minimal assets, such as a single family home and a few bank accounts, DIY estate planning can be a valid option. If there are no conflicts among beneficiaries, or the testator is a single individual with a sole heir or a married individual with a surviving spouse and no children, a generic DIY template could serve well.

However, if there are any complications to the estate, such as a disinherited heir, potentially litigious beneficiaries, complicated assets including trusts, multiple real estate properties, business assets, powers of attorney, advance health care directives, or separate property that needs special consideration, enlisting professional legal help is essential in avoiding future problems.

The Dayton Law Firm, P.C.’s Approach to Estate Planning

The Dayton Law Firm, P.C. has estate planning specialists to draft California-specific wills and trusts to ensure your intentions are fulfilled through your estate planning documents.

The holistic estate planning principles held by The Dayton Law Firm, P.C., put a focus on protecting families from future disputes, litigation, and hostile relationships.

The many years of probate and litigation experience of our estate attorneys inform every step of document preparation to account for any scenario and contingency while staying compliant with all legal formalities. If your estate does end up in probate court, we will represent your estate and fulfill the intentions of your estate planning.

Practical Next Steps for California Families

DIY documents should be reviewed regularly, as should all estate planning documents, but they should be replaced when your estate gains complexity. Once multiple beneficiaries and asset types are involved, DIY documents should be set aside in favor of professionally prepared estate documentation.

As part of selecting an estate planning attorney, you should have questions prepared to screen through candidates.

Questions should include:

• Length of time spent practicing estate law
• Whether estate planning is a focus or the focus of the law firm
• What a review of your assets and intentions looks like, and how it will inform their estate planning recommendations
• How often are reviews of estate documents conducted
• Whether the firm is named the trustee or executor of your estate or will
• What costs and timeline should you expect in having your estate documents prepared

Armed with these questions, contact The Dayton Law Firm, P.C. today to begin planning your estate.

Protecting Your Legacy with Confidence

Estate planning encompasses more than reducing upfront costs; it also includes reducing costs, litigation, and antimony for your beneficiaries. 

Professional guidance in planning your estate will provide you peace of mind while reducing the amount of effort you need to expend to ensure your assets are allocated and your beneficiaries are planned for once you pass.Reaching out to The Dayton Law Firm, P.C. will get your estate plan secured so you can spend less time worrying about the future and more time enjoying the present.