Be Careful who You get Your Documents From

By Lane V. Erickson, Idaho Estate Planning Attorney

Whenever someone asks me what I do for a living, and I explained to them that I am an estate planning attorney, I always get the same reaction. The person will either proudly declare that they have their estate planning done or will sheepishly admit that they need to get it done. Sometimes, when people talk about having their estate planning done, they even tell me who it was that did it for them. I am often shocked and amazed to learn that individuals will obtain their estate planning documents from financial advisors, accountants, insurance agents, and others who are not qualified to provide estate planning legal advice or to prepare estate planning legal documents.

When I learn of this, I usually suggest that these individuals have an attorney review their documents to make sure that they are legally valid and that they accomplish what the person really wants. I often even offer to review these documents myself for free. The reason I do this is because when I review these types of documents, I often find serious problems that can either completely invalidate the estate plan or can create unforeseen problems that our client doesn’t understand.

Our goal as the premier Idaho estate planning law firm is to provide the highest quality services to each of our clients. We want to make sure that the unique needs and circumstances of each person we work with are considered and are taken care of. To accomplish this, we avoid using a cookie cutter approach. Rather, we have our clients fill out our simple Estate Planning Questionnaire which then gives us the ability to understand everything we need to know to provide customized advice about the type of documents each person needs.

So what are the biggest concerns that can come up when a person other than a qualified estate planning attorney creates your estate planning documents? Below is a list of the three things that you should be concerned about.

The first problem in receiving your estate plan from a person who is not a qualified estate planning attorney is that the individual who is doing this for you is participating in what Idaho courts call the unauthorized practice of law. A person who does this can get into serious trouble. Specifically, Idaho Code § 3-104 states “If any person shall practice law or hold himself out as qualified to practice law in this state without having been admitted to practice therein by the Supreme Court and without having paid all license fees now or hereafter prescribed by law for the practice of law he is guilty of contempt both in the Supreme Court and district court for the district in which he shall so practice or hold himself out as qualified to practice.” Additionally, the Idaho State Bar Rules states: “Under I.B.C.R. 801(i), the unauthorized practice of law is the practice of law without being duly qualified to do so, as prohibited by statute, court rule, or case law of the State of Idaho.”

Whenever a person practices law without having the authority to do this, the Idaho State Bar Association through its own attorneys has the ability to investigate these complaints and to bring contempt proceedings against the individual. This can result in fines and/or sentences to serve time in jail for contempt.

The second, and perhaps more serious problem for you, if you have used someone to obtain an estate plan who does not have the ability to practice law in Idaho is that the documents are possibly deficient. For instance, it’s not uncommon that someone who doesn’t understand the law fails to create a valid estate planning document in the first place. A last will and testament requires certain formalities to be met in order for it to be valid under Idaho law. If any of these formalities are overlooked, or simply not included as part of the Will, then the Will more than likely will be invalid.

Additionally, in reviewing documents prepared by non-attorneys, we often see that there are things that have simply been missed. These things that are missed may not invalidate the document, but it may cause expenses and problems that could have easily been avoided.

For instance, in a probate case I worked on a family fight occurred because the written last will and testament that has been drafted by someone other than a qualified estate planning attorney did not name a personal representative. As a result, any of the children in the family were able to file a petition with the court to seek the appointment as the personal representative. These children fought amongst each other and spent tens of thousands of dollars simply getting a personal representative appointed. All of that could have been avoided if the last will and testament had been completed correctly, which would have included appointing a personal representative.

To avoid these kinds of costly problems for yourself and your family, you should use an attorney experienced in estate planning.

By having a qualified and experienced estate planning attorney assist you, you can be assured that all of your estate planning needs will be met. For instance, even a basic estate plan should include not only a last will and testament, but also a durable power of attorney, a living will, a healthcare power of attorney, and potentially even some sort of a trust. Again, this will be dependent upon your specific needs and what it is you want to accomplish. Additionally, it’s my experience that when you use a qualified estate planning attorney, it will be far less expensive because your estate plan will be solid and will not need to be revised immediately unless you choose to do it.

In finding a qualified and experienced estate planning attorney, you should look for someone who has good ratings online, and who has years of experience in dealing with estates, estate planning, and probates.

For more than 70 years we have helped numerous clients complete their own customized estate plans. In doing this we take into consideration our clients’ specific circumstances and needs. We are confident that we can help you too!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Pocatello 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.