Your Clients Will Need A Will: Here Are Some Things To Consider

Advocate, The (Baton Rouge, LA)

Aug. 25--The coronavirus is deadly, and it's far from over.

That may have you thinking about the unthinkable, which raises the question: Do you have a legal, written will?

It's important, says Elizabeth R. Carter, professor at the LSU Law Center.

"You should not wait until you are old to engage in estate planning," Carter said.

Just about everybody has heard this, but some people hesitate, possibly because they don't quite know how to approach the issue.

We asked Carter for the ins and outs of wills; below she gives the basics.

Do you have to go to an attorney to write a will?

"Can you" and "should you" attempt to DIY your own estate planning are two different questions. Can you? Sure. Should you? No. Never.

I could try to perform my own surgery. Should I? Obviously not.

Estate planning is simply not something you should ever attempt to DIY. Most people will do more harm than good, and it will end up costing them (or their heirs) more money in the long run. I see this happen every day, and it is absolutely heartbreaking.

Moreover, don't just go to any attorney. Seek out an attorney who has experience in the area of estate planning. Most good estate planning attorneys have years of study, experience and training dedicated to this specific area of law.

How do you do find one of these attorneys, and how much will it cost?

I would start by looking for an attorney who is board-certified in estate planning by the Louisiana Bar Association's Board of Legal Specialization. You can find the full list of these attorneys online at lsba.org/Specialization/EstatePlanning.aspx?Area=Specialists.

Another option is to search for an ACTEC fellow -- an attorney who is a fellow of the American College of Trusts and Estates Counsel. If you visit actec.org, you can search for fellows all over the country. I am an ACTEC academic fellow -- in the interest of disclosure.

Cost: Most attorneys will be able to give you a ballpark of the cost upfront for simple estate planning matters. Prices will probably range from $800 to several thousand dollars for simple wills and related documents. Cost tends to depend on your locality, the attorney, the complexity of your estate and the complexity of what you want to do with your property. People with larger and more complex finances may need to spend considerably more money.

Regardless, this cost is nothing compared to what it will cost your family if you try to take matters in to your own hands. It is much cheaper to do things correctly on the front end than it is to try and fix a mess on the tail end.

If you find a reputable lawyer who is just too expensive, ask that lawyer for a referral for someone less expensive. Most lawyers will be happy to do that. Some lawyers will even let you pay in installments.

What about online services that offer templates you can fill in to create wills?

Do not do this. Let me repeat that: DO NOT DO THIS EVER!

I have reviewed quite a few of the online services out there and, quite frankly, they are not worth the money. Some will cause you more problems and end up costing you (or your heirs) more money in the long run. Most of them do not even create documents that are legally enforceable in Louisiana. This is true even of some services that claim otherwise.

Even if the online services do create legally enforceable documents, those documents often do more harm than good. Estate planning requires consideration of a person's personal circumstances and family dynamics. It is just not well-suited to a "fill in the blank" approach.

Does a will have to be notarized?

Louisiana recognizes two basic types of wills: notarial and olographic. A notarial will must be signed in a very particular way that includes two disinterested witnesses and a notary. The olographic will does not require a notary or witnesses. It must be written, signed and dated by the testator. Regardless, writing a will is not something you should ever attempt to do on your own without the assistance of an attorney who is experienced in estate planning.

Are the rules the same for living wills?

No. Several terms get used a bit interchangeably: living will, advanced directive, medical power of attorney. Basically, these are all documents that relate to end-of-life treatment. Usually, your attorney will prepare these documents for you in conjunction with preparing your will. You want to address a couple of issues in these documents:

1. If I am incapacitated at any point so that I cannot communicate my consent to -- or refusal of -- medical care, who has the authority to make those decisions on my behalf? State law provides a default statutory scheme, but you might select someone different. A medical power of attorney or advanced directive does several things. One thing it often does is appoint the person who makes decisions on your behalf.

2. If I cannot communicate my consent to -- or refusal of medical care -- how should my surrogate decision-maker decide how to proceed? The other issue that your medical power of attorney or advanced directive does is communicate your desires with respect to various types of decisions. This enables your appointed decision-maker to proceed in the manner that you desire. This includes decisions like terminating life support under certain circumstances. But, it also includes all types of other decisions.

When most people refer to a "living will," they are talking about a document that only addresses a single issue -- the termination of life support under certain extreme circumstances. The Legislature has promulgated a form you can fill out with respect to those decisions, but it is inadequate and confusing. Many states have the same problem. What you really need is an advanced directive or medical power of attorney -- they are really the same thing -- that is prepared by a competent attorney.

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