Almost every week, I receive a call that goes something like this: “Hello Mr. Shapiro, my name is Mary Jones. I need to update my will. It’s a simple will. I know exactly what I want to do, so can I just give you the information on the phone and then come in to sign?”

Such a request underscores a serious misconception about what constitutes an effective estate plan and the appropriate role of an estate planning attorney. Some people expect their attorney to serve merely as a “scrivener” who records the client’s dispositive wishes and transforms that information into a legally effective will. The result will be a “word-processed” will that, although satisfies the legal requirements of a valid will, does not differ from what the client could have done for themselves using a do-it-yourself online website.

Completing a fill-in-the-blanks “estate plan” provides the client with a false expectation that his or her goals will be addressed. However, almost inevitably, the client’s true objectives will be disregarded, although the client will never know it since the ultimate success or failure of the plan will not be known until after death—and sometimes, not for many years after death.

For example, married couples routinely own assets as joint tenants with rights of survivorship. It is simple to establish a jointly owned asset, and it gives each spouse comfort that they have “skin in the game.” With joint ownership, title automatically passes to the surviving owner upon the first death without the need to go through probate. However, joint ownership is fraught with pitfalls. The assets are truly owned only by the surviving joint tenant, who may dispose of the assets as he or she desires after the first owner’s death.

Perhaps the surviving spouse remarries and then dies before the new spouse. Even if the deceased spouse has a will or trust leaving assets solely to the children of the first marriage, the second spouse can assert spousal rights to at least one-third of the assets of the deceased spouse, absent a prenuptial agreement. Even if there is no remarriage, the jointly-owned assets may be exposed to estate taxes upon the second spouse’s death, will likely be subject to probate, will not be protected from a Medicaid “spend down” if the survivor someday needs long-term care, and will likely be exposed to the surviving spouse’s creditors.

Proper estate planning requires that an attorney well-versed in the latest estate planning and elder law information and techniques gathers significant financial and personal information about the client, the client’s family, and other key people in the client’s life. Only after the attorney has learned about the client’s family, assets, and planning goals can the attorney work with the client to craft a customized estate plan that will address all the client’s objectives.

One key element in the attorney’s role is to educate the client about the various planning possibilities and to challenge the client’s assumptions. For example, most people intuitively assume that the “appropriate” way to leave an inheritance to an adult child is to simply leave it to them as an outright distribution, rather than in a trust for the child. People are understandably wary of “controlling from the grave,” and they incorrectly believe that leaving a child’s inheritance in trust automatically means that the child will have no control of, or access to, their inheritance. However, after learning they can establish a trust for a child’s inheritance that will allow the adult child to have access to the trust assets as trustee while simultaneously shielding the assets from the child’s creditors, a divorcing spouse, or the dissipation of assets because of a catastrophic illness or injury, clients almost always choose to leave the children’s inheritance in a trust.

Hiring an estate planning attorney should not be treated as if you are purchasing an appliance. Seeking the “cheapest” professional without focusing on the value you will receive for your money is likely to lead to disappointment—if not for you, then for your heirs when they need to settle your estate and are left with chaos and additional costs resulting from a “word processed” estate plan in which there is no correlation between the planning documents and title to the client’s assets.

Richard J. Shapiro, Esq., is a Certified Elder Law Attorney by the National Elder Law Foundation, as accredited by the American Bar Association, and is a member of the Council of Advanced Practitioners for the National Academy of Elder Law Attorneys. He has been designated a top-25 in the Hudson Valley “Super Lawyer” and has the highest (AV) rating from Martindale-Hubbell. Mr. Shapiro, who is accredited to practice before the Department of Veterans Affairs, is the author of “Secure Your Legacy: Estate Planning and Elder Law for Today’s American Family.” He is a partner with the Orange and Sullivan Counties law firm of Blustein, Shapiro, Frank & Barone, LLP. Mr. Shapiro is a member of WealthCounsel, ElderCounsel, the National Academy of Elder Law Attorneys, the New York State Bar Association (Trusts and Estates and Elder Law Sections), and the Hudson Valley Estate Planning Council. You can reach him at (845) 291-0011 or at [email protected]. The information in this article is for general information purposes only and is not, nor is it intended to be, legal advice.