Indiana is on the front line of a legal services technological revolution. LegalZoom is pushing a bill to allow electronic signatures of wills, trusts, powers of attorney, and other estate planning documents, while the Indiana Secretary of State driving an electronic notarization bill. Indiana State Bar Association members are working to fix serious defects in both proposals because they know that the General Assembly will pass some version of each bill this year or next year. Electronic signatures and notarizations will open many opportunities for paperless estate plans, but digital estate plans will lead many people to shortcut one of the most critical parts of the estate planning process – the signatures.
A LegalZoom representative discussed estate plan signatures with Jeff Hawkins after their meeting with the legislator on the electronic signatures bill. The LegalZoom representative told how a lawyer from his former law firm met with him and his wife for a couple of hours about their estate plan, and then met with them for a couple more hours when the couple signed their estate plan. LegalZoom representative, who is a high-ranking in-house lawyer of the company, thought his story was a good example of why it is not necessary for a lawyer to participate in an estate plan signing. Unfortunately, his story and comments merely demonstrated these false assumptions and misunderstandings that he and his employer seem to share about the estate planning process:
- document assembly programmers are aware of all estate plan alternatives;
- document assembly programmers understand all existing and emerging legal issues and practical, real-world challenges concerning all of the various estate plan alternatives;
- document assembly programmers’ questionnaire designs capture all important information about a customer’s specific estate plan needs and desires;
- the customer is aware of all of the estate plan alternatives;
- the customer understands all existing and emerging legal issues and practical, real-world challenges concerning all of the various estate plan alternatives;
- the customer understands the questionnaire;
- the customer answers the questionnaire correctly;
- the computer-generated estate plan documents solve all of the customer’s existing and emerging legal issues and practical challenges;
- the customer will understand all parts of the computer-generated estate plan documents and their legal consequences;
- the customer will want or need to ask questions of the document assembly programmer about why a particular sentence or paragraph appears in an estate plan document; and
- the customer’s feelings about the estate plan would not change if a lawyer would meet with the customer and explain every paragraph of each document.
Most ordinary people understand just enough about laws, estate planning alternatives, and estate planning practicalities to be dangerous. In fact, the Indiana Supreme Court disciplined a lawyer in 2009 for failing to explain an estate plan to a client because the lawyer sent his paralegal to supervise a client’s signature of a will instead supervising that event personally.
A skillful estate planning lawyer fills these important roles in the estate planning process:
- probing a client’s thoughts and feelings with questions to discover the client’s concerns and desires;
- educating the client about laws, estate planning alternatives, and practical reasons for the various estate planning alternatives;
- exercising professional judgment to choose appropriate estate plan provisions;
- explaining each estate plan document with real-world examples of how the document may affect the client or the client’s family;
- answering the client’s follow-up questions about the estate plan documents;
- revising the estate plan when the lawyer’s explanation causes the client to rethink the client’s estate plan feelings and priorities; and
- ensuring that the client is mentally competent enough and free from improper influence by other people to make estate plan decisions rationally and independently.
A lawyer’s involvement in the estate plan signing process is a big deal because it is the last crucial step in the transformation of a stack of documents into a personalized statement of the client’s individual estate planning intentions.
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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