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Estate planning of any type, including long-term care and Medicaid planning, is extremely risky.  This is due to the highly technical and complicated nature of the federal and state laws the planner must have mastered in order to not botch the job.

Life Care Planning, Estate Protection, Disability,
VA & Medicaid Assistance Lawyers

The Case Against Do-It-Yourself Estate Planning, Simply Stated, Is Like a Do-it-Yourself Lobotomy


Blog Category:
9/24/2010
Richard J. Habiger, J.D.
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Do It Yourself Estate Planning

Forbes Magazine's September 7, 2010 issue had an informative and thought provoking article on "Do It Yourself Wills".  My
WealthCounsel colleague in Montana, Mark Josephson, took the conversation one step further.  I would like to take the discussion an additional step and state that "do-it-yourself" estate or disability planning of any type, including asset preservation planning for long-term care and Medicaid eligibility purposes, is extremely risky.  This is due to the highly technical and complicated nature of the federal and state laws the planner must have mastered in order to not botch the job.  Thus, I hope you will find the following comments informative.

Josephson begins:
 

"My Larsson estate commentary and a recent article on Forbes.com regarding the pitfalls of do-it-yourself estate planning, The Case Against Do-It-Yourself Wills, got me thinking about some additional comments.  I could not agree more with the overall point made in the Forbes article.  I do disagree with some of the details. 

The Forbes article talks about the famous Montana court case involving Charles Kuralt (remember he was the famous CBS broadcaster who labeled Montana's Beartooth Highway as the most beautiful drive in America) and his handwritten love letter to his mistress.  In a case that went to the Montana Supreme Court FOUR times, his handwritten love letter was ruled to have given his valuable Montana property to his mistress and to add insult to injury Kuralt's family had to pay the estate taxes due on the Montana property because the handwritten letter did not coordinate with the tax clause of his professionally drafted Will. 

The article reminded me of another Montana case, The Estate of Dern, in which case Mary and Clifford Dern, who each had children from a different marriage, bought a trust package from a non-lawyer and also attempted to amend it themselves four times  -  sometimes having proper signatures, sometimes not.  In the end, the children ended up suing Mary with the case ending up in the Montana Supreme Court.  I think Justice Nelson in that case summed up the whole do-it-yourself thing as best as I've ever read.  He said:

Given the facts of this case, it is appropriate to make a further observation. If nothing else, our decision here should serve as a warning of the pitfalls of the "canned," "fill in the blanks," "one size fits all" trust instruments that are increasingly being sold to unsuspecting members of the public, particularly senior citizens, by salesmen, many of whom have no professional qualifications whatsoever and some of whom are little better than scam artists. ... In truth, few areas of the law are more technical, complicated and prone to financial disaster than estate planning and trusts, nor more demanding of the sort of individually tailored advice and assistance that can best be obtained from a competent attorney and tax professional. This case, unfortunately, proves that point. [my emphasis added]

Montana Supreme Court Justice James C. Nelson issued a stern warning on "Do-It-Yourself" estate planning.  The Judge's views were formed long before the Forbes 9/07/2010 article, but his sentiments parallel the Forbes article.  The estate and asset protection attorneys at HAELO would like to serve as a ounce of prevention for you by serving as your "competent attorney" that the Judge refers to in his foregoing commentary.



Category: Medicaid Planning / Asset Protection


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