Do I need an Estate Planning Lawyer? Can I Do it Myself? Nolo has award winning products to help you create your own estate plan, but before you elect to go the do-it-yourself route, we've put together a few pages to help you understand what it should include, and help you decide what products suit your needs, or when you might be better served by using an attorney.
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A good estate plan helps protects your family and your property when you die or become incapacitated. Planning your estate generally includes:
To accomplish these goals, you may need a will, living trust, a living will, and powers of attorney. You probably won’t need all of these documents, and you may be able to make some or all of them yourself, without a lawyer. Nolo's WillMaker & Trust software can take care of all of these for you. Here are descriptions of these documents, when you should make them, and whether you can make them without a lawyer.
Use a basic will to decide who will get your property, name an executor to wrap up your affairs, and name guardians for your children and their property. Because these are essential estate planning goals, most people should make a will. If you don’t make a will (or create some other plan to distribute your property), your state’s laws will decide where your property should go – usually to your spouse, children, or parents.
Most people can make will without a lawyer, however get legal advice from an attorney if you want to place conditions on your gifts -- for example, if you want to leave your savings to your daughter but only if she stays sober, or if you want to leave your house to your wife, but you want it to go to your sister after your wife dies. You may be able to make these kind of limitations, but you’ll need a lawyer’s help.
If you decide to make your will yourself, use quality estate planning tools. You can find will forms in books, software, and online. Take your time when making your will and choose a will-making resource that clearly explains what you need to do and why. When you’re done, read it carefully to make sure you understand what it says. Will language does not need to be complicated or convoluted – you should be able to understand every word. If you don’t, find another will-making tool, or see a lawyer for help. See "Do-It-Yourself Wills" for more information on will making options.
Use a living trust to keep your property out of probate. Probate is the court process of distributing your property after your death. It can be expensive, time consuming, and very often a big hassle for the family. Most estates do not benefit from probate, so it makes sense for those estates to use probate-avoidance tools, like living trusts. When you make a living trust, you transfer property into the trust, name beneficiaries for that property, and name someone to be trustee of the trust. When you die, the trustee simply transfers the property to the people you named – no probate court required.
Living trusts work well for those who own a significant amount of property (like a house) and want keep that property out of probate. But, unlike wills, not everyone needs a living trust because not every estate will benefit from avoiding probate. For example, you may not need a living trust if you
Also, even if you have a living trust you should still make a will to name guardians for any young children and to name beneficiaries for any property that is not transferred into the trust.
Most people can make a basic living trust without a lawyer. You can make a living trust using books, software, or online programs. A living trust does not need to be complicated; however, creating a trust yourself takes more work than making a will because you must transfer property into the trust. It’s easy to transfer personal property into the trust, but for property that has a title document like real estate, there are a few critical steps that must be carefully followed. If you decide to make a living trust without a lawyer, choose a trust making tool that explains the process clearly and walks you through every step. Like wills, the language of the trust itself does not need to be complicated or filled with legalese. You should understand every word – if you don’t, find a new trust making tool, or see a lawyer for help. See "Creating Your Own Living Trust" for more about these.
Use a financial power of attorney to name someone to take care of your finances when you aren’t able to. If you make your power of attorney “durable” it will continue to be valid even if you become incapacitated. You can also make powers of attorney that aren’t durable – these are useful for specific needs, like giving your brother the ability to sign checks for you while you’re out of the country. However, you will want your power of attorney to be durable if you anticipate that there may be a time when someone else may need to take over your financial affairs because you are unwell.
When you make a financial durable power of attorney, you name someone to be your "attorney-in-fact" (or, in many states your "agent") and you also state exactly what powers you want that person to have. Because your attorney-in-fact will have control of your finances, it is essential that you name someone you trust completely.
You can make a financial power of attorney yourself if you know what powers you want to give your attorney-in-fact and if you use quality self-help tools. Good self-help tools will explain the pros and cons of each power and how to finalize your document to make it legal. Like wills and living trusts, you should easily understand your power of attorney; it does not need to contain complex or confusing language. If your power of attorney is not clear to you, find another self-help resource or consult an attorney for help.
Use a healthcare directive to do two things: 1) name a person who will make health care decisions for you when you cannot, and 2) state your wishes for health care, organ donation and final arrangements.
In some states, these are two separate documents – the power of attorney for health care and the living will. Other states combine these documents into one form. The names of these forms vary somewhat by state, but every state allows you to do these two things.
Health care directives can be detailed and long, but they rarely require an attorney to draft. Instead, you can make one yourself using books, software, online programs, or forms from a hospital or other care-giving organization. Make sure the resources you use are specific to your state, explain your options, and are clear to you. If you the health care directive form that you are using confuses you, find another form or consult a knowledgeable lawyer or medical professional for advice.
Most people can make basic estate planning documents without a lawyer. If you do, make sure you choose a quality self-help resource that:
Finding quality self-help resources should not be hard. Take some time to shop around to make sure you get the tools that will work best for your circumstances. If you become confused or if you realize your situation may be too complicated to use self-help resources, consult an attorney for help.