OCTOBER 12, 2015 VOLUME 22 NUMBER 37
Last week we wrote about when you might reasonably represent yourself — that is, when you might not need a lawyer for your legal work. We suggested that what lawyers do is not precisely brain surgery, and that reasonably intelligent, informed and diligent non-lawyers might well be able to handle a number of legal tasks on their own. But which tasks, particularly?
You know you’re not going to get a lawyer to answer that question without a number of disclaimers and qualifications. Let’s be clear about what we have to say here: this advice will not apply to every individual, or in every state, or in circumstances that seem similar to what we describe. Treat this advice like the dangerous information it is: we’re not giving you blanket permission to represent yourself in a range of legal issues, and if things go wrong we don’t want you complaining that we told you it would be fine. We mean no such thing.
The default choice you should make in every legal issue is to talk to one of the people who know legal matters best. There is a name for those people: they are called lawyers.
Are you worried about cost? Start the conversation with the lawyer you consult by insisting on knowing how charges will be calculated and how you can stop the cost if it begins to overwhelm. Are you worried about getting information you don’t want to hear? Then you really, really need to talk with a lawyer. Are you worried about people finding out just how much trouble you’re in? Your conversations with the lawyer are almost always completely privileged — no one is going to hear about the fact that you consulted the lawyer, much less what you talked about.
All that said, we know how people are. You want to do it yourself. You want to save money. You want to figure it out, just like you did when you built your house without a contractor, or fixed your car without a mechanic. OK — are there some legal tasks that are safer for you to tackle than others? Yes, there are.
Wills
Can you write your own will? Yes. There are lots of forms out there, and you can use software to do much of the work. As between those two choices, by the way, we prefer software; it will take you down a branching decision tree, and will reduce the likelihood that you will make a mistake. But not eliminate it.
We are fond of recalling the client who brought us his father’s will. Dad had found a form for a will for a single person, and had just scribbled out the provisions about being single and written in mom’s name. Then he had adjusted the other provisions for the fact of mom being in his life. Problem was, the whole thing no longer made sense. Property did not pass the way dad almost certainly intended. Yes, he saved a couple bucks on legal fees — but the cost to his family was much, much higher.
That story being told, the reality is that most people will do just fine if they write their own wills. The key word in that sentence is “most” — some will foul up their estates, and fantastically (and expensively). That won’t be you, though — right?
By the way, if you use software or a form you are giving up on the opportunity to have a conversation with someone who knows what they are doing. Maybe you don’t need to make provisions for your home, if you take advantage of Arizona’s “beneficiary deed” provision. Or maybe that isn’t the right choice for you. Will the computer chat with you about that, or about your wishes for end-of-life care, or — stuff you can’t even think of?
Trusts
Just talk with a lawyer, please. The forms and books you read will oversell trusts, and the number of steps you need to take will complicate things beyond most people’s ability to figure it out on their own.
If you insist on preparing a trust without a lawyer, once again we prefer software to books and forms. But don’t think you can prepare the trust using software and save a couple bucks by taking the completed form to the lawyer to review — it takes us just a little bit longer to review your document than it does to interview you, figure out what you need, and then prepare the right document in a format we’re familiar with. In other words, it actually costs more.
Probate
Can you handle the probate of your mother’s estate without a lawyer? Probably. Do you and your sister get along well? Is your mother’s estate all in Arizona? Is the will clearly valid (or are the heirs easy to figure out)? If so, the probate may not be that complicated.
Don’t expect to just drop by the courthouse and talk with the judge, or the probate clerk. You can talk with someone in the clerk’s office, but they won’t give you forms or any legal advice. They will tell you to go to the local bar office (or someplace similar) to pick up the forms (you’ll likely pay a few dollars for that) and fill them out.
The process won’t be any faster without a lawyer — in fact, it’ll probably take longer. It will be frustrating and you’ll feel like you’re having to do things that you shouldn’t have to do. But you’ll likely get through it just fine.
Planning on fighting with your brother, or your stepfather? Talk to a lawyer before filing a single thing.
Guardianship
The share of guardianships filed without a lawyer increases every year. That’s mostly OK — the process is complicated, but at least there are a couple of lawyers involved in most guardianship proceedings even if you don’t hire one. The judge, for one, is a lawyer. The subject of the guardianship will have a lawyer appointed to represent them. You’ll get feedback from those lawyers, and from the clerks and others in the system, that will keep you from going horribly wrong. Probably.
One piece of advice: if the court clerk stops, look at you quizzically and suggests you might want to talk with a lawyer — go talk with a lawyer. That is a clear indication that something about your case is out of the ordinary. While the court staff can’t give you legal advice, they are pretty good at body language.
Guardianships of minor children are even easier for most people to take care of on their own. In fact, lawyers are involved (in Arizona — very different answers might apply in other jurisdictions) in a minority of minor guardianship proceedings. But if things get peculiar, or you get anxious about whether you’ve done things right, talk with a lawyer. You might not need to turn the guardianship petition over to them, but make sure you’re in the clear.
Conservatorships
When handling someone else’s money is involved, you need legal advice. We’ve watched people actually go to jail for things that they thought were just fine — the court’s view of the conservatorship is much more restrictive than the view of many family members. Don’t risk it.
Remember that a conservatorship necessarily means that there is money to manage, and that your legal fees can likely be paid from that money. It’s just a good investment.
[Did we mention that we only mean this to apply in Arizona? Let us repeat that — and observe that even the words “guardianship” and “conservatorship” can mean something else in other states.]
We hope this helps. We really do favor people handling their own affairs when they can, and most lawyers agree: we will help you figure out whether you can do this yourself.