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Several years ago, our daughter’s kindergarten teacher shared with us a simplistic job description that our daughter gave to the class about her lawyer parents. When asked what her parents did for a living, our daughter said, “They type and click.” Many people have a similarly simplistic understanding of estate plan “forms” and the process of signing them. We are focusing this article on the similarly misunderstood concept of the documents that a lawyer uses to build a client’s estate plan.
As we wrote in our blog article, Craftsmen Lawyers for the Emerging Global Community, law practice is an ancient art form handed down from one generation of lawyers to the next over thousands of years. Each generation of lawyers builds on the preceding generations’ foundations of law and language that have survived many challenges. An experienced lawyer can serve a client more effectively by recycling and updating old document templates than by re-creating the wheel with original language for each client. Trust and estate lawyers follow this time-honored practice because most of the law and language of estates and trusts is extremely old, and it is too easy to leave important details out of estate plan documents created from scratch.
Lawyers wrote estate plan documents by hand with pen and ink for thousands of years. Commercial printers help lawyers speed up the drafting process by producing pre-printed document templates (often referred to as forms) that contained areas that lawyers could complete with language customized for each case. Word processors improved the estate planning even more than the old preprinted forms because lawyers could customize their old templates’ preprinted language instead of crossing out words or added language in the margins or on addenda to override inappropriate preprinted language.
Much of the public misunderstanding about legal forms developed when publishing companies made forms available to the public. The publishers tried to offer guidelines to help people prepare their own legal documents, but the guidelines always fell short of addressing the infinite number of existing and emerging legal issues that people face.
Lawyers add value to their document templates by applying their doctoral level training in legal analysis and writing to adapt their documents to changing laws and circumstances. An experienced trust estate lawyer constantly edits and refines the lawyer’s document templates as the lawyer encounters new situations that require creative solutions. Thus, you could expect an experienced trust and estate lawyer to say that the lawyer’s best estate plan document is the next document that the lawyer will write.
A client once asked a lawyer whether a shoddy last will and testament that the client purchased on the Internet would be effective. As a lawyer trying to describe the will’s defects, the client interrupted the lawyer and insisted that the will was a “legal document.” The lawyer responded, “If you tell a clothing store salesperson that you want ‘clothes’ without regard for color, style, or size, the salesperson will sell clothes to you, but you may not want to be caught dead wearing those clothes. Likewise, this document would be a ‘legal document’ if you would sign it, but you would not want to be caught dead with it as your last will and testament.”
We explained in our blog article, Signing Documents Is a Big Deal, that the Indiana rules of professional conduct require that a lawyer to participate in the estate plan document signing process because the client often gives the lawyer important new information during the lawyer’s document explanation. Word processors allow an experienced trust and estate lawyer to refine documents right up to the moment of a client’s signing of the documents so that the documents will fit the client like a tailored suit.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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