The real reasons you need a will

Why don’t most adults have a will? The no. 1 explanation they give is “I just haven’t gotten around to it.” I blame the lawyers for not making it easy. But the no. 2 reason is “I don’t have enough assets to leave to anyone.” And you know what? I blame the lawyers for that, too. (Detect a theme?)

If that’s the second biggest reason people don’t have a will, lawyers are dropping the ball. We’re the ones who know it’s a misconception that estate planning is only about who gets your assets. That’s just one part—and often not the most important.

Let’s start, though, with that misconception. If you think to yourself, I don’t really have anything, then why pay some lawyer for a will?

For starters, you might have more than you think to pass on. Have you considered your life insurance? (Don’t forget about employer-provided group plans.) Have you considered your house and your cars? Even if you have a mortgage or other debt, and even if you think what you have isn’t valuable compared to other people, these assets probably add up to something significant for your beneficiaries. Enough to do some real good; enough to squabble over.

Speaking of debt, you might be assuming it will wipe out anything you have left at your death. That might be true of some types of debt—in general, all debts, taxes, and final expenses are paid before any beneficiaries—but there are exceptions. A big one is federal student loans, which are discharged entirely at death. That means that even if you have a big outstanding balance on student loans, it’s possible you’ll have something to pass on. Other types of debt might be settled for smaller amounts or excluded entirely as part of the probate process. Don’t assume debt will prevent you from leaving property to your family.

But in any case, a will does more than just distribute property. Probably the most important thing a will does is put someone in charge of your final affairs. Somebody will have to pay your debts, file your final taxes, and actually distribute the property. This is an important job, not just because it involves handling money and legal matters but also because these things can have a big impact on your family. Dealing with final affairs can easily lead to conflict, no matter how much property you have. So it’s important to have someone in charge who is trustworthy and wise enough to navigate relationships and conflicts. You name that person in your will. If you don’t, you’ll end up with no say in who ultimately does this important job. And somebody will do it, one way or another.

Another important part of a will, if you have a young family, is naming guardians for your minor children. These are the people you want to raise your children if the worst were to happen. At the same time, you’ll need to decide who will be in charge of your children’s inheritances until they reach a responsible age. These decisions are some of the hardest in any kind of estate planning—and the most important.

You’ll need to make similar decisions for a child of any age who is severely disabled, or for a child who has a severe illness, addiction, or debt. These situations are a huge opportunity to do good, as well as a big risk of they aren’t planned for.

But this is all just about the will and what it can do besides divvy up your assets. What most people don’t realize is there’s more to good, simple estate planning than just drafting a will. Often more important are the documents that give your family the tools they might need to take care of you while you are still alive. These are called powers of attorney.

In Wisconsin there is a power of attorney for finances and a power of attorney for health care. These documents delegate your legal rights to make your own decisions and manage everything about your life to other people. Why would you do that? In case you come to a time when you can’t make your own decisions or manage your own finances and health care.

In those times, somebody else must take on those responsibilities (and, by the way, your spouse doesn’t automatically get them). If you haven’t chosen that person by executing powers of attorney, your family will have to go to court and get a judge to choose—an expensive and lawyer-heavy process called guardianship. Better to choose your own trusted agent and save your family the pain and expense of trudging through court just to take care of you.

For most people, estate planning is as much or more about letting their families care for them as it is about leaving money for their families. We’ve all seen friends and family surprised by tragedy, grief, and hard times. In those situations, your family just wants to know your wishes and have the ability to carry them out. Without a good estate plan—a will and powers of attorney, at least—they might have neither.

Fortunately, a good estate plan doesn’t have to be complicated or expensive. It can be simple.


What “simple estate planning” really means

Most people, when you ask them, want their estate planning to be one thing: simple. Seasoned lawyers will tell you that “simple” really means “cheap.” Don’t bother with people who worry about your fee is their advice. But that advice is, in part, why so many people don’t have an estate plan.

When people want their estate planning to be simple, they are talking about what they don’t want. They don’t want it to be complicated. They don’t want it to be a lot of work. They don’t want it to take forever to get done. They don’t want it to be expensive, yes. And they don’t want it to be something they can’t understand.

Those are the defining features of an estate plan that is simple. It is:

  1. Easy
  2. Streamlined
  3. Affordable
  4. Understandable

Unfortunately, traditional estate planning is not any of these things. Traditional estate planning results in high-quality documents, but the process to get them is often difficult, lengthy, expensive, and confusing. Nothing about it is simple. I’d like to change that.

Easy

Estate planning can be difficult in many different ways:

  • It’s hard to get started.
  • It’s hard to find a lawyer you trust and can afford.
  • It’s hard to gather all the financial and legal information the lawyer asks for.
  • It’s hard to take time off work to meet in a lawyer’s office several times.
  • It’s hard and intimidating to work with a lawyer in the first place.
  • It’s hard to understand everything the lawyer says and take in all the information at once.
  • It’s hard to make so many important decisions, all in one or two meetings.
  • It’s hard to think so much about your own death or disability (I think this difficulty is overblown, but it is a difficulty for some people).
  • It’s hard to understand your legal documents without the lawyer explaining them to you.

In short, it tends to be hard to work with a lawyer. Attorneys aren’t known for making things easy, after all—and they definitely haven’t made them easy in the realm of estate planning.

To make estate planning easier, we have to rethink the process. It has to be clear how to get started and easy to take the first step. It shouldn’t leave clients to constantly worry about how much it will cost or if they’ve found a good lawyer. The lawyer shouldn’t ask for more information than is necessary or make the client feel intimidated. There should be options for meeting by video and after business hours, and meetings should be kept to a minimum. Rather, clients should be able to learn and make decisions at their own pace—whether that pace is quick or slow.

Streamlined

The typical first-time estate planner knows only that he or she needs a will to name an executor and divide the property. But even the simplest estate plan should include multiple legal documents, each with at least a handful of important decisions to make. So traditional estate planning almost always takes 6-8 weeks—sometimes longer. That’s an unexpected commitment to many first-time clients.

It took you a long time to finally decide to get your estate planning done. Now you’re ready to cross this off your to-do list, and the first thing your lawyer tells you is … not so fast?

I’m as guilty of this as any lawyer. It’s because I want my clients to have all the information they need to make good, informed decisions. I want my clients to know their options, and in estate planning there are many options. Few clients realize at the beginning how many options they’ll have and how many decisions they’ll need to make. I don’t want those decisions to be made hastily.

But there has to be a better, more streamlined way to do estate planning. It’s not necessarily about getting the documents executed in as little time as possible, but about removing barriers to clients getting to the finish line at their own pace, whatever that is. Some clients don’t need or want to learn all about a will and what they can do with one; they just want to have one that meets their needs, and they’re comfortable making decisions quickly. Other clients need to ask lots of questions and take time to discuss it all with their family. Both types should have a lawyer who adjusts to their needs, not vice versa.

Affordable

Seasoned lawyers will tell you that “simple” really means “cheap.” Don’t bother with people who worry about your fee is their advice. But that advice is, in part, why so many people don’t have an estate plan.

Any normal person is going to be worried about cost as they walk into a lawyer’s office. And with good reason, when many lawyers still bill by the hour and charge for phone calls and postage. Normal people—who have to worry about whether a thing will cost them $50 or $500 or $5,000—need good estate planning too. They just need that good estate planning to be simple. And, yes, that does mean it should cost less.

Traditional estate planning is expensive because it involves a lawyer doing all the work with each client one-on-one, and because lawyers tend to make things complex. Like I said, there are many options when designing an estate plan, and that lawyer is trying to think through all of them, and his time is expensive. This sort of service is good if you need a complex estate plan. If what you need is something simple, however, it’s not necessary. A simple estate plan can be designed to meet most people’s needs with a few standard options plus customization as needed, rather than trying to consider every option. That cuts down on the lawyer-work required and helps streamline the process as well.

One side of affordable estate planning is making the process itself less work; the other side is making it easy to pay for. This is why I always use flat fees in my practice. I don’t want my clients to wonder how high the bill will climb, worry about how long a meeting is taking, or hesitate to make a phone call. So I don’t bill for my time; I bill for the good advice and legal documents my clients receive. That way, I can tell them up front exactly how much it will cost.

How much that is will be less, too, if the process is easy and streamlined. It all works together. The more we make estate planning easy and streamlined, the more affordable and accessible it can be. We might even be able to make it more affordable than ever if we can change the fundamental process away from being 100% one-on-one with a lawyer towards being 80% in a group and DIY plus 20% one-on-one with a lawyer.

Understandable

Finally, a simple estate plan should be something anyone can understand. Traditional estate planning documents are long and confusing. They use legal jargon and talk in legalese. They’re organized to make sense to lawyers, not normal people. They use long paragraphs where headings and lists would be much easier to read. They use several words where one will do better (as in “give, devise, and bequeath”). In short, they are things that require a lawyer to read and understand.

I think most lawyers resist making legal documents simpler for a number of reasons. There’s something impressive about a lengthy legal document. That thick estate planning binder represents the work the lawyer did for you. If your legal documents were only a few pages and could fit in a small folder, wouldn’t that mean they’re inferior?

The truth is that, as in any kind of writing, making a legal document simple is more work. It’s easy to be verbose, to throw in every legal provision under the sun because why not. But it doesn’t make the document better. It makes the document worse, in fact, because it takes more time to cut through all the cruft and figure out what really matters. And there’s no reason why legal documents can’t be written in plain English. Some legal terms will be used, of course. But a simple estate planning document can and should be understandable by anyone.


I think estate planning can and should be all these things. That’s my current work: to make estate planning simple. I’ve still got a lot work to do to accomplish that. If you’d like to follow my work and see how I’m trying to improve, sign up for my professional newsletter below.

The problem with traditional estate planning

The problem with traditional estate planning is it doesn’t work for most people. I know that because 58% of American adults don’t have a will. That number is even higher when you limit it to those with young children.

Why don’t more people have an estate plan? After all, most people seem to know it’s important. The answer most estate planning attorneys give is “people just don’t want to think about death.” Hogwash.

True, estate planning involves thinking about death and other unpleasant things. But so does life insurance, and health insurance, and plenty of other things we do to provide for our families and keep them safe. We don’t shy from facing harsh realities when it means protecting our loved ones.

No, the reason more people don’t have an estate plan is not some willful delusion about death. It’s lawyers.

Blame the lawyers

If you look at a recent Caring.com survey, the leading explanation for not having an estate plan is “I just haven’t gotten around to it” (47%).

Why do you think so many people haven’t gotten around to it? It’s because you have to go to a lawyer to get a will. And lawyers aren’t known for making things easy. Or cheap.

I’ve done traditional estate planning. Here’s what it looks like:

Meet in the lawyer’s office for an hour or two for a consultation.Meet in the lawyer’s office for an hour or two to make all your big estate planning decisions.Meet in the lawyer’s office for an hour or two to review and edit documents.Meet in the lawyer’s office for an hour or two to execute your final documents.

This process requires you (and maybe your spouse) to take time off work for each meeting. It involves the lawyer doing all the work. And it’s expensive because you’re paying a highly trained expert to do all this work one-on-one. For some people this process works. But for most people it’s impractical and unneeded. There must be a better way.

The DIY option

If traditional estate planning is too expensive and inconvenient for you, there is another option. You can do it yourself. Cutting the lawyer out of the equation certainly makes it cheaper.

Ron Swanson's will
Ron Swanson was the DIY type.

It used to be that DIY meant buying a book or a form. Now it usually means something like LegalZoom. However it looks, though, it essentially comes down to filling in the blanks on a boilerplate document. Because these document templates are meant to be used by anyone and without a lawyer, they are made to address only the most common situations. In other words, they are bare bones. They make cookie cutter estate plans. They get the most basic job done, and that’s about it.

Even if you only want a very basic estate plan, DIY planning still poses a big risk. Without a professional looking at your particular situation, you’ll never know if you’ve missed something important. You don’t know the law and you can’t anticipate how it will affect you specifically. That’s why most people feel hesitant to do their own estate planning—and rightly so, I think.

When you have a lawyer, you can personalize your documents without fear. Your lawyer ensures any changes make sense and work with the law. And your lawyer will know what you can and should change to achieve your goals.

Without a lawyer there’s no one to catch all the issues and risks you don’t see yourself. Without a lawyer there’s no one to tell you what you can do with your legal documents, never mind what you should do. Doing your own estate planning is certainly cheap, but it also severely limits what you can do. And you’ll never be confident you haven’t missed something important.

Another way

As you can see, I think both traditional options for getting your estate planning done are poor options for most people. To get a good estate plan, you need help from a lawyer; but lawyers have not made the estate planning process easy, pleasant, or affordable. That’s the real reason why most people haven’t gotten around to it.

I think the solution is to combine the best of both traditional estate planning (solid legal advice) and DIY planning (affordability and a sense of empowerment) by applying the Pareto principle. The Pareto principle is commonly called the 80/20 rule because it estimates that 80% of the results comes from 20% of the effort. I think you only need a lawyer for 20% of the work put into estate planning, and the remaining 80% you can do yourself with just that bit of help from the professional.

Things you can do yourself:

  • Gather information
  • Learn about estate planning
  • Think about and make informed decisions
  • Decide what’s important to you and identify your goals
  • Use an online app to create most of your estate plan
  • Execute your estate planning documents

Things you need a lawyer to do:

  • Identify your particular legal issues
  • Teach you what you need to know to make informed decisions about your estate plan
  • Answer your legal questions and help you make tough decisions
  • Check your decisions and documents to make sure they address every issue and achieve your goals
  • Customize your documents to meet your needs

The things that take the most time in estate planning are gathering information and learning what you need to know to make good, informed decisions. In traditional estate planning, the lawyer just explains things to you in meetings. But there’s no reason you can’t learn in other, more efficient ways, such as by reading a guide or watching videos. That cuts out a lot of lawyer time and brings down the cost significantly.

This isn’t just about cost, though. You do more of the work, and you learn by doing. This will mean you learn more than you would just listening to a lawyer talk. More importantly, you’ll be empowered by the knowledge of how to do estate planning.

I’m just starting to figure out how this third way of estate planning might work. I’m putting together a pilot program to try it. I’m calling it Forward Estate Planning, and you can learn more about it here. This is very much a work in progress. You can follow along and watch it evolve if you sign up for my newsletter: