How do I provide for a disabled family member in my estate plan?

If you have a family member who is disabled, you’ll need to take that into account in your estate planning. It’s a common situation, but it’s important to provide for your disabled beneficiaries in a different way.

Why do I need to plan differently for disabled family members?

There are two main problems with giving property to a disabled family member.

First, it might disqualify them from government benefits. Programs like SSI (Supplemental Security Income) and long-term care Medicaid are based partly on disability and partly on falling below a certain financial threshold. If a disabled person suddenly gets a big lump-sum inheritance, their benefits will end. What happens then? They’ll have to use that inheritance on things the benefits would have paid for until it’s all used up, at which point they’ll have to go through all the red tape of applying again to get their benefits back. It’s a waste of money and a major headache.

Second, they might not be the best person to manage the property. This is often (but not always) true if they have a significant intellectual disability. But severe physical disabilities or chronic pain can also affect the amount of energy a person can put into managing finances, especially if they are also vulnerable to depression. Of course, many people with disabilities are fully capable of managing their own affairs. You’ll have to decide for yourself whether your particular family member needs this kind of help.

Ultimately, the goal of estate planning for a disabled family member is the same as for any other: provide for them in the way that’s best for them. Estate planning is an opportunity to do good! It can make a huge difference in the lives of your loved ones—doubly so if they have a disability.

How should I plan for disabled family members in my estate plan?

If you want to provide for a disabled beneficiary while avoiding the problems mentioned above, you will need to create a trust for them. This trust will hold the property and allow it to be used and managed for them, without them owning it directly. Because they don’t own the money, it doesn’t count against their government benefits. And because it’s in a trust, someone else (the trustee) is in control of how the money is invested and spent.

There are many different kinds of trusts. The most common type of trust for a disabled person is called a Supplemental Needs Trust or Special Needs Trust (SNT for short). These trusts contain the disabled person’s own money and are designed to supplement government benefits. Their primary drawback is that any money remaining in the trust after the disabled person’s death gets paid back to the State. But since you are planning with your money—not your disabled family member’s money—you don’t need to create an SNT with this drawback. (If you don’t plan your estate and your disabled family member receives an inheritance outright, they will have to scramble and jump through legal hoops and pay legal fees to set up their own SNT—if they even know it’s an option.)

Instead, you can create your own trust designed to provide for your disabled family member. There are several ways to do this.

Option 1: Use your will

Your will can create a trust to provide for your family member after you die. You can put the terms of the trust in the will itself (creating what’s called a testamentary trust), or you can simply give your personal representative the power to create an appropriate trust when the time comes.

For example, I include a provision in every will I draft that kicks in whenever a disabled beneficiary is about to receive property. Instead of receiving it directly and facing the problems mentioned above, this provision allows the property to be placed in a trust for that person’s benefit. You never know if a family member who is currently healthy will become disabled in the future. Accidents, injuries, and illnesses happen. That’s why I always include this as an option.

Note: You’ll probably need to hire an attorney to get a will that includes this kind of provision. Do-it-yourself options are often too basic to include planning for disabled beneficiaries.

So one option is to rely on your will. This is often the cheapest and easiest approach to take in the short term—but it will involve more work and incur more costs later on. Because this provision is contained in your will, only property that goes through your probate estate can be put into the trust that will be created. But most of your property is probably non-probate property—life insurance, retirement accounts, anything with a beneficiary designation. If you want that property to go into a special trust for your disabled family member, you’ll have to change beneficiary designations to your estate or testamentary trust. That will force the property to go through probate and end up in the trust, but it also means you’ll have a lengthier and more expensive probate process.

To sum it all up, if you rely on your will to create the trust to provide for your disabled family member, it will be cheaper and easier in the short term, but more expensive and more complicated for your family in the long term.

Cost: About $750-900.

Pros Cons
* Simple in the short term
* Easy to put in place
* Inexpensive
* Far better than nothing!
* Requires going through probate
* Requires complicated coordination of beneficiary designations
* More work for your family after you die
* More expenses after you die

Option 2: Create a separate trust now

Rather than waiting until you die and relying on your will, you can set up a trust for your disabled family member right now. This gives you full control and the reassurance that everything is taken care of.

This separate trust will provide that the trust property be used only to supplement any government benefits or other sources of income for your beneficiary. Your beneficiary won’t have any ability to demand or control the trust property or how it is spent—somebody else, the trustee, will make all final decisions. Who that trustee should be is the most important decision you’ll have to make.

You can serve as the trustee while you’re alive. Other family members, especially ones who are reliable and organized, might naturally serve as trustees. Finally, you can have a bank or non-profit serve as trustee (in which case they’ll be paid from the trust property).

Even though you’ll be creating the trust now, you don’t have to put your property into it (“fund” it) until after you die. That’s up to you. You might put property into it immediately if you:

  1. Want your disabled family member to be able to use the trust right away;
  2. Choose to have a bank or non-profit serve as trustee; and
  3. Want to “set it and forget it,” letting the professional trustee take care of distributions, investment decisions, and administrative tasks.

The more common approach is to set up the trust but wait to fund it. In that case, the trust is ready and waiting to receive property after you die. Because it already exists, no probate is required to set it up and you can name it as a beneficiary of your life insurance and retirement accounts. Because it isn’t currently funded, there are no ongoing costs or administrative tasks to maintain it (apart from having an attorney review it every once in a while in case the law has changed).

Cost: About $750-900 for your own estate planning + $1,000-2,500 to set up separate trust + any property you choose to put into the trust immediately.

Pros Cons
* You have full control over terms of the trust and who is in charge
* Reassurance that everything is taken care of
* Option to fund immediately and have managed professionally
* More legal fees up front to set up
* Requires coordination of beneficiary designations to avoid probate
* If unfunded, little immediate benefit

Option 3: Create a living trust for yourself that turns into a trust for your disabled family member after you die

This option has the greatest flexibility and immediate benefit. It’s sort of a combination of Options 1 and 2. A living trust is a common way to avoid probate and make estate administration simpler for your family after you die, but it can also, just like a will, create another trust for your disabled family member. It can provide for your other beneficiaries, too, and simplify your estate administration by bringing all your property under one roof. So you get to avoid the expense and complication of probate, make things simpler for your family, and maintain a lot of flexibility while you’re living.

The main drawback of this option is that it is more expensive than a will-based plan (though less expensive than Option 2) and requires some retitling of accounts and changing of beneficiary designations after you create the living trust.

Cost: About $1,500-1,800.

Pros Cons
* Less expensive than Option 2
* You get all the advantages of a living trust for yourself
* Completely avoids probate
* Consolidates all your estate planning in one document
* Allows simpler and faster estate administration after you die
* You have full control over terms of the trust; custom
* More expensive than Option 1
* More work up front to set up
* No option to have a professional trustee manage while you’re alive

A final option: Rely on an informal plan

Last of all, you might have the idea of leaving everything to a healthy family member, trusting him or her to use the money for the disabled family member as needed. For example, a client who has one healthy adult daughter and one disabled adult son might leave everything to the daughter, knowing she will take care of her sibling.

This is an informal arrangement. The daughter legally owns the property and can do whatever she wants with it. It’s vulnerable to her creditors (imagine a lawsuit) and to the property shenanigans of marriage and divorce. It’s also affected by the daughter’s own estate planning—or lack thereof. And then who provides for the disabled son after the daughter’s death?

These risks are hard to anticipate or control, even if you think they aren’t likely to happen to your own family. Even if everything goes well, it’s likely some of the money meant for your disabled family member will be lost, intermingled, or invested inappropriately.

An informal arrangement carries the most risk that your money will ultimately not provide for your disabled family member as planned, for one reason or another. But an informal arrangement certainly can work. If you are comfortable taking those risks, have a family member who is not only trustworthy but also reliable and organized, and can’t afford more formal estate planning, an informal arrangement might work for you. If you can afford even simple estate planning, I think it’s worth it to eliminate the risks of an informal plan.

Cost: $0-900, depending on whether you use do-it-yourself forms or hire a lawyer to draft a basic estate plan.

Pros Cons
* Cheapest, easiest option
* Flexible; family have complete control because they own the money
* Greatest risk that money will be taken or wasted
* Family who receives money has to figure out everything for themselves; no direction
* Not that much cheaper than Option 1

What is a trust, exactly?

“Do I need a trust?” It’s about the most common question I get. Trusts are one of the most complicated, confusing, and misunderstood pieces of estate planning. In this and following articles, I’m going to break them down and make trusts simple. First up: taking a step back to talk about what a trust is.

A simple trust

Most people think a trust is essentially a bank account. It holds property; you can put property in and take it out. That’s true in some ways, but a trust is much more than a box that holds property. Legally speaking, a trust is a set of relationships between property and people.

To illustrate, imagine:

  • You’ve taken your family to the county fair.
  • Your 8-year-old son is about to go play some games, supervised by your teenage daughter.
  • You’ve budgeted $20 for each child to spend during the outing.

You probably wouldn’t hand your 8-year-old $20 and trust he’ll spend it well. You’d probably hand it to your daughter with instructions to make sure it isn’t spent all in one place or too quickly, and to make sure there’s enough left over to buy lunch. You would say you’ve trusted your daughter with that money. You might tell her, quite naturally, “I’m trusting you with this.” It’s only for her little brother, but she is in control of how and when it is spent. She holds that $20 in trust for her brother.

That’s a simple trust. The trust is not just the $20—it’s also the special relationship between that $20, your daughter, and your son.

There’s a legal term for each person involved. You are the grantor, because the money was originally yours and you are the one entrusting it to someone else and giving them instructions. Your teenage daughter is the trustee, because she’s the one who possesses the money and must follow your instructions about how and when and for whom it is spent. Your young son is the beneficiary, because this whole arrangement is for his benefit.

diagram of a simple trust
A simple trust.

You have more power over your property than you think

It helps to understand that when you create a trust, you are exercising your legal rights as owner of your property in a different way than normal.

Most of the time, we think that owning property means one thing: it’s mine and I can do what I want with it. You can go a little deeper, though, and think about all the things you can do with it. For example, let’s say you are the proud and fortunate owner of an apple. You own it, sure, but what does that mean? What can you do with that ownership? Well, you can:

  • Control where the apple is, physically (in your hands, for example, or in your cupboard)
  • Eat the apple
  • Feed the apple to your child
  • Plant the apple seeds
  • Throw the apple in the garbage
  • Give the apple to someone else

Think of each of these things as a different legal right you have as owner. The thing is, owning the apple is not an all-or-nothing game. You can divvy up these rights and uses and give them to different people. You can just hand the entire apple to someone else, sure. But you could also cut it in half and keep some for yourself. You could take the seeds out first and give them to a different person. You could hand the apple to your friend to keep safe for you while you go take a swim.

Think of ownership as a bunch of separate rights over the property. These rights, such as the right to possess and the right to use, can be separated by creating a trust.

In the same way, when you create a trust, you’re dividing the different rights to your property and giving them to different people. You’re giving the right to possess and manage the property to your trustee, and you’re giving the right to use and enjoy the property to your beneficiary.

Of course, it gets a little more complicated than that. When you give these different rights to different people, you also have to create some rules about what each person can and cannot do with the property. Does the trustee get paid for the job? Can your beneficiary use the trust money to buy a luxury car? You might want to answer these questions.

Trusts are about the future

In fact, the great benefit of a trust is it allows you to set the rules and control how your property is going to be used and managed far into the future. Most of us only think about our property in the here and now, making decisions about how to invest it or manage it or spend it as they come. In fact, we all have the creative power to set legally enforceable rules and relationships between our property and the people we love.

Why would you want to do that? I’ll answer that question in future articles. In short, though, you create a trust because you want to set your own rules for who is going to control your property and how it is going to be used in the future. You want to do that because it will protect or help your family. Because, as with our example of the county fair, sometimes handing over a wad of cash is not the best way to do it.

How virtual meetings make estate planning simple

Traditional estate planning is not simple, and a big reason for that is meetings.

Traditional meetings are on the lawyer’s terms

Traditional estate planning involves three to four meetings (usually), over the course of six to eight weeks. All of these meetings are:

  • In person,
  • At the lawyer’s office, and
  • During business hours.

Some people make it work. If you’re retired, for example, you probably have more freedom during regular business hours. If you’re not retired, though, it’s hard to take that much time off work—especially if your spouse has to take off as well, or has to find someone to watch the kids. That’s a big reason why only 20% of millennials and 36% of Generation X have wills.

Even if you can attend these meetings, going to a law firm is no one’s idea of fun (even if you like your lawyer). Law firms tend to be intimidating and uncomfortable. You often have to deal with a receptionist and wait. A good law firm will make this a pleasant experience. Many firms, though, haven’t put much thought into customer service, even if they are full of good lawyers.

I once hired my own lawyer for a small matter. When I showed up for the initial meeting, I checked in with a dour receptionist. She told me, in no uncertain terms, that I could not meet with my lawyer until I had completely filled out a long questionnaire with lots of (I knew) pointless questions. That was my first experience walking into the law firm as a client. Even though my lawyer ultimately did a fine job, do you think I’ve ever recommended the firm to anyone else? This kind of experience is, sadly, still common in the legal world. It’s expected that clients will meet with the lawyer on the lawyer’s terms.

That’s also why traditional estate planning meetings often have to be scheduled weeks in advance. They have to fit into the lawyer’s schedule, and lawyers are busy. Although estate planning isn’t usually an urgent matter, it’s frustrating as the client to finally decide to get it done and then find out it’ll take several weeks and multiple meetings.

Of course, for a long time in-person meetings were the only option. You want to see your lawyer so you can get a good impression and decide if he or she is trustworthy; phone calls and emails won’t suffice. But now video technology and the internet have given us another option: virtual meetings.

Virtual meetings are on your terms

Virtual meetings solve the problems with traditional, in-person meetings. Their key virtue is flexibility, which is a virtue indeed in today’s busy world.

Because virtual meetings can be done from anywhere and at any time, they can work around your schedule. You can have a virtual meeting in the early morning, on a lunch hour, or in the evening after the kids go to bed. You can have a virtual meeting at work, or at home, or while visiting relatives. You won’t have to take time off work. You won’t have to find childcare. You won’t even have to put on shoes.

Virtual meetings are easy to attend—you only need a computer or smartphone and an internet connection. They avoid the expense and annoyance of traveling to a professional office. Best of all, you don’t have to wait in a waiting room or deal with a receptionist.

And think about this: you don’t have to live near the lawyer to have a virtual meeting. That means you have more options when it comes to choosing an attorney. I, for instance, can serve anyone in the entire state of Wisconsin.

All this flexibility and convenience saves the lawyer time and expense as well. It’s a win–win. That’s why virtual estate planning often costs less than traditional estate planning.

Lawyers are still catching on to virtual meetings, which is a shame. For estate planning, I think they are a no-brainer. They make it easier, cheaper, and, well, simpler. That’s why I offer virtual meetings, and hope they will become the primary way I meet with clients in the future.


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:

A simple manifesto

Sir Ernest Gowers wrote Plain Words, a guide for the British Civil Service on how to write to members of the public. That is, he was telling bureaucrats how to “explain the law to the millions.” He gave three elementary rules:

  1. Be short.
  2. Be simple.
  3. Be human.

Later in the book, he added a fourth:

  1. Be correct.

I’ve never seen better guidewords for anyone whose job is to help ordinary people with law and the government. That’s not just those who work for a government agency, but also attorneys.

Sadly, both government workers and attorneys are often bad at following Gowers’s advice. We take 50 words to say what could be said in 10. We use legal jargon when plain English would work better. We write and speak like robots or Vulcans. We make ourselves difficult to understand.

I think we should change that. Short, simple, human, correct—when I do a will, trust, or Medicaid application, that’s what I want my client’s experience to be. In elder law, things often do become long and complicated. But I think my role as an attorney is to take a complicated legal task and make it as simple for my client as I can.

Here’s an example. Most estate planning done by lawyers takes one or two months and several in-person meetings to complete. These meetings can pack a lot into just one or two hours. A client might be asked to make many decisions in quick succession. It’s easy to succumb to decision fatigue.

Can’t we find a better way? A way to have fewer and maybe shorter meetings? A way to educate clients and give them time to make good decisions? A way to make the estate planning process less of a hassle?

I haven’t figured it out yet. But I want to. I have some ideas that are worth trying. Because whatever the status quo is, it’s not short, simple, or human. And it’s not working—most Americans have little or no estate planning in place.

Talking about simple, that’s one thing Medicaid is not. It’s a huge and complicated government program, which many people depend on for long-term care. I can’t make Medicaid simple. I can’t change the rules or get my clients through some loophole that magically solves everything. But I can make it simpler. I can make it less complicated for my clients.

I wish the world operated on Gowers’s rules. I wish wills, trusts, and Medicaid applications were all short, simple, human, and correct—they are often none of those things. I think my job—and the job of everyone who works in estate planning or elder law—is to bring as much brevity, simplicity, humanity, and accuracy as I can to my work.