Making A Will With Quicken WillMaker Is Unauthorized Practice Of Law?
from the uh-oh dept
Laws against "unauthorized practice of law" are highly problematic, and usually designed more to artificially inflate what lawyers can charge, rather than to actually protect the public. Too often, perfectly innocent suggestions are later construed as "unauthorized practice of law," such as by paralegals who used to do exactly the same thing working for lawyers or by an accountant helping to fill out incorporation forms. A new case concerning such laws apparently found that an insurance agent who helped a client make her will using either Quicken WillMaker or Quicken Family Lawyer was found to be guilty of unauthorized practice of law for helping her draw up a will by filling in the blanks in the software based on what the woman told him. That certainly raises questions about anyone using one of those programs (or other legal software) to helps anyone else complete any kind of legal document. While the laws are designed to protect people, it certainly seems like it can go too far in cases like this one.
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Heh.
Of course in this case, it was propagated by an insurance agent, whos motives weren't the purest anyway and was trying to funnel money to either themselves or his agency.
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Re: Heh.
You might have a point in candy and gumdrop land. The simple truth is that the law is more complex than that, and anyone that tries to draft these documents without appropriate advice is a fool.
For instance, say you have two children, John and Jane. For whatever reason, you want to leave everything to Jane. So you write "I leave everything to Jane."
You've just created a will that can be readily contested. Perhaps it will take years to settle, and cost lord only knows how many thousands of dollars in legal fees. A simple two hundred dollar visit to an attorney, however, and instead you would have the phrase "In thinking of John, I leave everything to Jane." Now Jane doesn't need to spend a lot on legal fees, and gets the estate much sooner.
Trying to skimp on legal fees is frequently being penny wise and dollar foolish. A few hundred dollars in drafting a will, a contract, etc. can save tens of thousands down the road.
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Re: Heh.
Oh, Bullshit! She asked someone outside her family to help her draw up the will, and it sounds like she made him Executor of her estate, whom many states and provinces allow a small(ish) honorarium to be paid to the person for thier time and trouble.
Have you ever executed an estate? If the person has any signifigant assets, (over about $100k), it's a huge pain in the ass, even if everything goes according to plan. If you've got greedy people involved (IE: Grandnieces) who want to argue and drag the thing on thru probate forever, there's court fees, and lost time from work to go argue, and so on.
I know that my will allows the Executrix to be paid for out-of-pocket expenses, and $22 an hour for any reasonable and provable travel and other (lost wage, etc) expenses incurred in the discharge of my estate, and from my experience having executed a couple of estates, many people do that as a matter of courtesy, because one of them took literally weeks in court to settle, and I would have had to bail on it, not being able to afford the time off from work.
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Lawyers
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Re: Lawyers
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Re: Lawyers
As far as lawyers trying to protect their business, well, yes, they probably are. However, as one who has witnessed big legal messes when someone (even an attorney) drafts a poorly written will, yes, an attorney is a necessity to draft a will. And, yes, it is not that easy to say "X of my crap goes here and Y of my crap goes there." If you don't believe me, grab a Wills and Estate textbook. I work with laws all the time and legislators who think they are saying something that is perfectly clear are blinded by the intent they have in writing the provision. The same can be said for non-professionals drafting wills. They think what they said is clear, but, unfortunately, when it is time to probate the will, they are not around to tell the court what they intended.
Like I said to a friend of mine who used a will software kit: How do you know the will does what you think it does? Have you had an attorney review it? Well, until you do, you can just sit and wonder.
Heck, wills are usually loss leaders that attorneys draft for much less than their hourly rate and then pray that when the person dies that they did not make an iota of a mistake. Each will an attorney drafts is a little ticking time bomb of malpractice and the attorney does not know if any of the bombs will blow them up until each person dies.
Sorry, but those are the cold hard facts...and not spoken by someone who makes their living off drafting wills.
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Re: Re: Lawyers
There are situations, however, that requires a "wills and estates" attorney such as for extremely wealthy people who have very complex estates and equally complex distributions. These folks won't be buying any software, they have the bucks to pay the hefty fees of an attorney.
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Better safe than sorry...
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Greed
Also FTA: The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence in the preparation of legal documents and prevent harm resulting from inaccurate legal advice. ("The amateur at law is as dangerous to the community as an amateur surgeon....")
That seems like a rather arrogant statement, but I'm sure some nutcase made it necessary. But my thing is this: I don't need a doctor to dress a small wound. I am not forced to go to the hospital if I cut my finger and apply a bandaid. So too is this brainless piece of software filled in under the guidance of the woman who was willing out her stuff.
Many lawyers may be jerks, but they're not the driving force behind this crap this time.
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Re: Greed
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Re: Re: Greed
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Re: Greed
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Re: Greed
The issue is not the fact that the person themselves wrote up the will, not a problem, but that SOMEONE ELSE helped them fill it out. That person gave legal advice without a license. That is a serious problem.
Did the person explain the legal issues involved in making certain dispositions, making fiduciary appointments, requiring/not requiring a fiduciary to have to post a bond, having the fiduciary serve with/without court supervision, the tax effects of a disposition, why to include a residuary clause, including a no contest clause to prevent crap like this from happening, making a simultaneous gift to the children at the same time to prevent a will contest, or even explain how useful it is to have a formalized will execution ceremony to prevent claims of incapacity?
No. probably because the person has no training in the law and has no idea about any of these. The problem with this software, is they cannot explain these issues to people either. There are serious questions regarding whether the software itself is unauthorized practice of law by the corporation who wrote it as well.
I have first hand experience with a person who used one of these programs to write a will and save some money. Instead, he spent thousands of dollars to pay an attorney to fix the problems his cheapness created. Penny wise, pound foolish.
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Edit
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So what...
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Recently...
Wills can be very complex instruments. They should not be done without legal advice. I would presume there are probably some conflicts of interest being an insurance agent as well.
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What you all don't realize
Finally, in most cases a person will require only a simple will and an attorney will charge a relatively small amount for the preparation of this document. Particularly if you consider the costs that can balloon out of control if beneficiaries begin to challenge the will.
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Re: What you all don't realize
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Re: Re: What you all don't realize
Very clearly, you are a nonattorney and have no idea what you are talking about.
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Re: Re: Re: What you all don't realize
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Recently...
Wills can be very complex instruments. They should not be done without legal advice. I would presume there are probably some conflicts of interest being an insurance agent as well.
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Slightly misleading title
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Re: Slightly misleading title
I think you're right, that the issue is actually charging for providing some sort of legal service(s) and charging for that service.
But so what if someone other than a lawyer offers you legal services and charges you for them? They're not forcing you to take the legal services. They tell you what services they will provide, and what the cost is. You can either decide to accept that or not. If you don't want "legal" advice from an insurance agent, then you don't have to take it, you can instead go to a lawyer and get what you think you need from them.
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Re: Re: Slightly misleading title
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Re: Re: Re: Slightly misleading title
Um, no, that's a completely idiotic, ridiculous comparison, and that's not what I was saying at all. I'm not saying that just because I think it's okay to show someone how to use some software to do a task for them that they should also be able to do surgery on them, be an astronaut, or perform dental work on you.
And I agree that you're not able to tell if someone is competent or not competent, that's why you ask for proof of some kind that they know what they're doing. I'm not saying that a law degree, or any other "proof" of expertise, is useless either. I'm saying that government needs to stay out of forcing someone to have a degree or certification of some kind to prove they have some sort of experience or knowledge.
If you want to go out and open a business as a law expert, you should be able to do that whether or not you have a degree. The law shouldn't stop you from doing so. What the law SHOULD stop you from doing is lying, committing fraud, etc against people. That's against the law now, and it should always be against the law. But if you're someone with a good knowledge of the law, and you've proven it by hard work and experience in the field, then let consumers decide of their own free will if they want to use your services or not. Don't force that person to pay X amount of dollars to go get a certificate of some kind if someone is willing to pay you for your services. If two people, of their own free will, wish to enter into a contract with one another, with no force or fraud being used, then who are you or anyone else to interfere with that?
If that person can't get business due to the fact that no one trusts them without some sort of certification, then they'd better go get said certification or proof in order to be successful.
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Re: Re: Re: Re: Slightly misleading title
My inner libertarian tends to agree with you, but as a practical matter, I think it's impossible to avoid interference.
People are retarded. And someone that has no skill as an attorney may be a brilliant marketer (you already see that with the licensed attorneys on TV now.
If you were to remove the requirement of a degree to practice law, people would inevitably go to the lowest priced crook, and after having gotten taken, insist on "accountability" from the gov't and the legal system. It would have to swing back to tighter control.
I know, I know… nearly everyone agrees that the government is not our babysitter, but people’s opinions tend to dramatically change once they get into a tight spot.
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Re: Re: Re: Re: Re: Slightly misleading title
But I have to politely disagree with your reasoning, especially the part And someone that has no skill as an attorney may be a brilliant marketer (you already see that with the licensed attorneys on TV now.. There are lawyers out there now, WITH a degree, that are still brilliant marketers, and still fool people into using their services, and there always will be, no matter how strict the requirements are.
One thing to realize though is that people trying to take advantage of you to cheat you in some way or harm you is in the minority. Most people would not do that. And "retarded" people as you call them are also in the minority.
I'm not saying those "retarded" people, or elderly, or any other type of person that might be too gullible shouldn't be protected, they should be, which is why we have laws against cheating people, stealing from them, tricking them (fraud), harming them, etc. Those laws will ALWAYS be there. Whether or not you have a degree to do anything doesn't remove the fact that you cannot steal or commit fraud against someone. If you're caught, you will go to jail, pay a fine, or whatever the state decides is appropriate punishment (unless you're friends with a politician, in which case you can get out of most problems).
So making the assumption that there will be more law breaking if you remove the requirement of having a degree to practice law really isn't valid in my opinion.
As long as there are punishments for crimes there will be a deterrent for the majority of people to not commit crime, besides the fact that most people wouldn't want to rip you off anyways.
One person in these posts made mention of the fact that one day you won't be able to work on your computer by yourself without have a certification or something. So let's use that example. If you're looking for someone to service your computer, where will you go, who will you trust? There are certifications out there, such as the A+ certification, Microsoft certifications, Linux certifications, etc, that are NOT REQUIRED by law, but consumers, for the most part, know that those with those certifications are usually more knowledgeable and have more expertise than someone without them.
Those companies or individuals will market the fact that they have certain certifications, and there will be some that lie about their certifications and just get a piece of paper that looks official (against the law). Some will take advantage of you, some won't. But consumers for the most part will find out, through reputation, which ones are trustworthy, and which ones aren't.
I just think the same thing should go for most industries and trades, such as law.
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Re: Re: Re: Re: Re: Re: Slightly misleading title
I am quite used to people thinking that my years of school and years of practice are not worth anything, especially when they have seen some Matlock re-runs. The damage that you are pretty much guaranteed to do to yourself is consolation enough for me.
Frankly, the price I charge for wills is much less then the price I charge for commencing an estate litigation action. The fact that someone has decided to save some money in order to turn their kids against each other is not my problem. They can at least die feeling smart.
I also encourage people to use unlicensed practitioners to help them out. If a lawyer screws up, they are protected by an insurance fund that will cover the cost of repairing the damage. In an estate situation, this can mean millions of dollars. By going to an unlicensed practioner, the beneficiaries are unprotected and will have to swallow the cost of the screw up themselves. Good luck trying to recover.
Finally, estate planning does not start and end with a will. If you are desperate to pay more money to the government than you need to and leave less to your beneficiaries, that's your call. Those leaches should get a job or something. What did they ever do for you? And are they really worth more than $50?
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Protecting industry
It's like the laws that force someone to go through all sorts of trouble to get their builder's license, or a license to be able to work on air conditioners or electrical. Those laws are there supposidly to "protect the people" from people that don't know what they're doing. But all they're created for is to protect those in that industry and make it harder for competition to come in.
When you leave it to the free market everyone will benefit. Sure there will be those dishonest folks that lie and say they have X years experience doing something, try to cheat people, do a shoddy job, etc. But that will happen whether or not you have regulations of an industry. At least without those regulations it forces those industries to compete with one another, which results in more choices for people, lower prices, and also allows more people to be able to get into that business and make a living.
Corporate welfare, which is what this sort of thing is, raises prices for everyone, and it surely doesn't create more choices for consumers.
Also, one more point. Lawyers try and make law seem so complicated, for what purpose? Why do they use so much convoluted language? Answer: To confuse the rest of us so that they have an advantage and we "need" their expertise. They basically generate their own demand artifically in the market in this way. It's ridiculous.
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Re: Protecting industry
So no, they are not trying to make it harder on you. I believe this is a reason the law has become convoluted. In the 19th century legalese was used much more extensively and a person without legal training would think they were reading a foreign language. The upide was the words had specific legal meaning. There was less room for interpretation and avoidance.
Not every thing is a conspiracy. The law is complex because our society is complex. There is never going to be simple laws because there few things we do in our lives that are simple.
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Re: Re: Protecting industry
Yes I have a lawyer in the family, but I would still feel the same way even if there wasn't. Beside, who thinks the law is complicated? I'm probably one of the few Americans who READ this so called "complicated law" before signing away my name. It's really not that complicated and big words don't scare me.
Also, I can draw up a completely legal contract, have it notorized, and also have it held up in court. It is not only illegal, but completely unethical, for someone else who is not a lawyer to assist me, since in the eyes of the law they might do it for their own personal gain.
The law is set to protect it's citizens. But that doesn't stop people from trying to use it for their own personal gain (lawyers excluded).
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Re: Re: Re: Protecting industry
Do they lie about it and tell people they are a piano player in a whorehouse?
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“It was once thought that in death was solace of mind. That was before someone made a business of protecting me from myself for which I have to pay. ”
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sensational headline, mike
since i have no intention of opening an office and making wills using that software for hire, the article doesn't relate to me.
i've seen similar headlines on the cover of national inquirer while i wait in line at the grocery store. somehow i expect better from TechDirt. oh well...fuck you towel heads.
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100 years?
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Re: 100 years?
The meaning of words is essential to law. Exact meaning is critical. That is why legalese was used. It prevents misunderstandings.
Charlie go through out your life without those slimely bastards and see how things work out for you. It is those slimey bastards who are the front line when it comes to protecting your freedoms from our benevolent government.
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Re: Re: 100 years?
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Re: Re: Re: 100 years?
Also, the point the poster was trying to make was that things like contracts, wills, etc are written in very specific prose to state exactly what the intentions are.
Often times, the law is written exactly the opposite... with room for interpretation.
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Re: Re: Re: Re: 100 years?
I do agree with you there. But if the law were 100% absolute, we would still live in a country where only white men could own land, vote, and have rights of any kind.
Change is good!
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Re: Re: Re: 100 years?
Then why do we need so many judges to "interpret the law"?
Because even with the most plainly written, overly descriptive wording, every party to a dispute is going to try to wrangle the meaning of the words into a form that benefits that party.
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Re: Re: Re: 100 years?
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Did he charge?
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So wouldn't every . . .
Seems like layers just bitching at a loss of potential income.
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Re: So wouldn't every . . .
Unless you have a complicated estate that requires some tax planning it is not going to cost you a lot of money to get a will done. In fact, a great number of people with no resources get their wills done pro bono by local bar asscociations.
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Re: Re: So wouldn't every . . .
Would you want a non-doctor performing surgery, how about a non-dentist performing a root canal, or (here's one you'll take issue with) a non-real estate agent performing your real estate transaction?
To suggest that non-lawyers should be able to charge or even perform legal services is a disservice to the expertise lawyers contribute to society. And this insurance agent should have known better than to perform a legal service.
If you believe lawyers aren't experts, I'd suggest you haven't dealt with any good ones.
You may believe they are the bane of society now, but if someone wrongs you, how are you going to seek recourse??? Perhaps you should call your insurance agent.
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Wills
I used a lawyer for a will and a trust document, because of some specific needs I have that not really ordinary. She asked us to sign it, and the damn thing had the names of the last people to ask for something similar. She hadn't done anything for her very high fee except re-print. She wasn't even embarrassed, just shrugged and had the admin assistant change the names.
Lawyers will burn in hell.
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All She Needed To Do.....
The family might try to sue claiming he used his influence improperly, but if the woman had no history of being irrational or showing a diminshed capacity, such a suit wouldn't stand.
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Re: All She Needed To Do.....
You probably just made the case for the other side. That is why nonlawyers should not give legal advice. You just screwed the person you gave the advice to, and they WILL hire a lawyer to come after you.
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Re: Re: All She Needed To Do.....
This guy doesn't know what the fuck he's talking about.
Agreed. If you think using a POA is a viable solution, you just made a very good point as to why the world needs lawyers.
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Lawyer BS
The problem is when people sell legal advice without informing their client that they are not licensed to practice law.
I've lived in Washington, DC, a city full of lawyers for 17 years. And yes, by and large, they really are greedy bastards with no morals. But I've done a lot of policy analysis that required me to read the actual law. And what others have said is true. Lawyers and legalese are very precise in their language, while most non-lawyers are not.
That said, I'm also very precise in my language and write up most of my own contracts, etc., and feel comfortable doing so and occassionally give out free legal advice (which, knock on wood, has never come back to bite my ass or the asses of the people to whom I have given advice).
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Re: Lawyer BS
So, same issue. If you do not like one then do not like the other.
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The larger issue is....
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Re: The larger issue is....
In many instances, the law is full of nuance and you may need an expert to help you navigate.
I just don't know if it's fair to say this is all because of lawyers being greedy. Certainly there are some that are greedy, but I'd say it's the litigants that are generally the greedy ones.
And it's those that file the claims which necessitate the law to be so specific and at times complicated.
Don't get me wrong, I'm not suggesting there aren't law firms that encourage pointless litigation, but if there wasn't a market, they wouldn't exist.
I also think that the person who said the legal software programs are ok replacements for lawyers has a point too, in many cases. But sometimes those "bells and whistles" may be the difference between you getting your final wishes carried through in the form of your will, and your heirs tearing it to shreds after you die.
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Re: The larger issue is....
For certain laws, ie SEC regulations and ERISA statutes, I believe it is enough to be put on notice you need to have counsel screen your actions to make sure they comply.
The RICO laws are the best example of this. This law was meant to apply to organized crime and now it is applied to everything under the sun. You cannot have a criminal law where no one knows until you are prosecuted that it was a violation of the law.
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Good or Bad Advice?
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TheDock22
And this whole thing about lying, deceitful, immoral lawyers, well that a load of crap. All the lawyers I know are good, decent, and VERY honest about their practice. People act like lawyers are evil, when there are just as many crappy doctors (who while obligated by law, will perform a quick-and-dirty surgery on patients they know can't pay), accountants (who may siphon away money for their own greed), and most business men (who are just ruthless and cut-throat). Am i saying ALL the people in these fields are evil? No, there are many good ones.
And if you a person who got screwed by a lawyer, well who's fault is that? A couple hours of reading would have saved your money. If your that big an idiot, you deserved it. And I have a bridge in Brooklyn to sell you...
Oh and by the way, I would NEVER sign a POA to an insurance agent. That's literally signing my life away (as the have the power to "pull the plug" in certain medical situations). But people wouldn't really do that, right?
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Covering our arses
Every field has its jargon; physicians intubate, attorneys litigate. Each must do so with an attendant level of precision and specialization. There are things that lawyers do--and words they have to use--that address situations outside of our ordinary experience.
The average citizen has little patience for the nuances of these dicsiplines until their fortune, well-being, or their very life is in the hands of such professionals.
While I am loathe to disagree with Shakespeare, the fact is that if you try to treat sepsis with rubbing alcohol, you get what you deserve. Likewise if you pay a physician to "cure" a broken rib, though there will always be the scoundrel who will take your money.
DIY is fine when you're making punk rock records, but there are some matters of life, living, and death that do require professional assistance.
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Covering our a**es
Every field has its jargon; physicians intubate, attorneys litigate. Each must do so with an attendant level of precision and specialization. There are things that lawyers do--and words they have to use--that address situations outside of our ordinary experience.
The average citizen has little patience for the nuances of these dicsiplines until their fortune, well-being, or their very life is in the hands of such professionals.
While I am loathe to disagree with Shakespeare, the fact is that if you try to treat sepsis with rubbing alcohol, you get what you deserve. Likewise if you pay a physician to "cure" a broken rib, though there will always be the scoundrel who will take your money.
DIY is fine when you're making punk rock records, but there are some matters of life, living, and death that do require professional assistance.
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Complex wills maybe, but not any I've dealt with
In the case of my dad's will (which is the same as my stepmothers'), she still lives, so she got everything. When she does die, assuming things are still the same, and they probably are, my half-brother and I split half, and her son and two daughters split half. I think it would have gone better to just have split it five ways. It's not like I'm (or any *-sibling) expecting to get rich off that will.
My mother was the baby of her family, my dad the baby of his family, so aunts and uncles aren't even a thought. I certainly don't have to worry about my older half-brother and half-sister (I was in a melded family before they ever had the term melded family). They aren't worrying about me.
6 years ago, when I wasn't married, it might have actually been more complex. I didn't have a will then either. :-P I don't understand why wills have to be complex. If I have that much money to worry about, I'd think I'd have already handed off the money and property to whoever before I die.
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Re: Complex wills maybe, but not any I've dealt wi
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Lawyers Suck
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The will is legal
If someone has a very complex estate and many beneficiaries and conditions, then a lawyer would probably be warranted but in the case if "If I die I want everything to go to my wife", then I can't see why a noterized will (no matter how it is made) won't hold up in court.
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Why I need a lawyer to draft a will
2. Let's say you die with a nice estate, but you have no spouse, and no children. A nice friendly lawyer would tell you that you should have a trust to ho0ld most of your assets, and a will simply to transfer anything left to the trust. But because you went to some idiot who doesn't know the law of estate administration, all you have is a will. Your estate can now take years to be distributed.
3. Lawyers love to find out that the will they have been hired to contest was drafted and supervised by a non-lawyer.
4. Lawyers who draft wills also have experience in contesting wills. This is a great way to learn what not to do that cannot be learned from any form book or software. There's a will in my office that is so atrocious that the estate administration is still ongoing seven years after death. And there hasn't even been a will contest. Whenever you hear a horror story about an estate administration that took years, don't blame the estate lawyer. Blame the estate planner, who was probably a non-lawyer, or a a inexperienced lawyer.
It seems to me that there is a lot of arrogance to the question, "How hard can it be to say where your assets should go." There are things we know that we don't know, and there are things that we don't know we don't know. Arrogant people will forever be tripped up by the latter.
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Lawyers make more money from DIY wills
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Unauthorized practice of Law
The software is not the question. It was his practice in the development and subsequent delivery of the Will, which is unauthorized since he is not qualified to do so. An agent does not have the capacity to act as he did. The software is irrelevant; it could have been a pen and paper, same result.
The legal knowledge of this thread is beyond me, if you cannot understand the basics of a case, I suggest you restrain you comments since they are completely misleading from a legal point of view.
I suggest you read the case, rather than mislead the
This case refers to the insurance agent acting beyond his scope in the provision of a Will. It was his provision of the will and not the creation on the software, which is the issue.
The software is not the question. It was his practice in the development and subsequent delivery of the Will, which is unauthorized since he is not qualified to do so. An agent does not have the capacity to act as he did. The software is irrelevant; it could have been a pen and paper, same result.
The legal knowledge of this thread is beyond me, if you cannot understand the basics of a case, I suggest you restrain you comments since they are completely misleading from a legal point of view.
I suggest you read the case, rather than mislead People,
Thomas
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Who Cares?
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Making your own will???
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Lawyer can be a bad decision and so can do it yourself
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