A recent report from Lexis Nexis on the likely impact that AI bots such as ChatGPT will have on the legal profession shows that the advent of generative AI will have a significant impact on the legal profession. Indeed, of the consumers surveyed, 60% would use generative AI for general legal advice and 41% would consider using it to create a will. ChatGPT will join the ranks of the very low cost, or even free, online services available to draft documents such as wills, trusts, durable powers of attorney and healthcare proxies. ChatGPT as presented, seems to be a very good alternative for most people. So, will using an estate planning professional to draft and execute your estate plan go the way of the Scrivener into the dustbin of legal history?
With all due respect, the people who see generative AI as the low cost or even free alternative have it exactly wrong. The value of hiring an estate planner is not in the documents, but in the planning. Without planning, the documents are worse than useless.
Estate plans combine three elements: learning from the past, adapting to the present and anticipating the future. The document generators codify learning from the past through their processes and procedures when drafting the documents. A fiduciary, such as a power of attorney holder or a personal representative, adapts to the present. Only planning anticipates the future.
Dwight Eisenhower said, “In preparing for battle, I have always found that plans are useless, but planning is indispensable.” Planning requires first speculating about the cause-and-effect relationship between what you do today and what will happen in the future relative to your objectives. Second asking, “What facts, if they exist, would prevent you from achieving your objectives?” and third finding out how likely it is that those facts could exist. By examining these alternative facts, and what the results would be if they occur, you can anticipate possible future situations and plan for what you need to do to when they happen to still achieve what you want.
Here is an example: I want that, at my death, all my assets go to my wife, if she is then living and if not, then to my children, equally. I, therefore, draft and execute a will that reads:
“I make this my last will, giving all of my assets, both real and personal and wherever situated, to my wife, if she survives me; and if not, then equally to my children, the issue of any deceased child taking their parent’s share equally, and asking that my wife be my personal representative without sureties on her bond.”
Properly signed and witnessed, this is a valid will. But what are the facts that, if they exist, would prevent this from happening? Here are a few:
• I have a retirement account and I have life insurance from before I was married. Because each of these are contracts, the assets are distributed according to the beneficiary designation forms I signed when I started the retirement savings or purchased the life insurance—which at the time were my parents (since I was not married nor had children). The fact that I have such contracts with out-of-date designations means that the assets do not go to my wife; instead, they will go to my 96-year-old father.
• None of my children have a drug problem, but it is possible that one or more of them could be caught up in the opioid crisis. If one of them does so and has judgments against them from creditors at my death, those creditors get whatever assets that child might receive from my estate. The fact that a child might have judgments against them due to an opioid addiction means that assets will not go to my child, but to their creditors instead.
• My wife and my children will die before I do and my grandchildren are under the age of 18. My assets will not go to my grandchildren but rather to a guardian appointed by the court until they are 18. The fact that my grandchildren might inherit from me but be underage means that my assets may be diverted into the hands of a random guardian appointed by the court.
• I own my own law practice. Since neither my wife nor any of my children are lawyers, they cannot inherit the practice and much of the value of the good will of my practice will disappear the moment of my death. The fact that I am in business for myself and so much of the value of the business is based on my being there means that my wife and my children will not get the full value of my business after my death.
None of these situations are guaranteed to occur, but they are also not utterly improbable either. Once anticipated as a possible future situation, there are actions I can take such as changing beneficiary designations in IRAs and insurance policies, creating a trust for minor beneficiaries and buying life insurance on my life equal to the value of my practice. My clients are often in similar situations and using a basic will from a generative AI will be cheap, but will not prompt them to anticipate the future. By not hiring an estate planner, you cannot plan for the future because you cannot foresee all risks, or even all of the opportunities, the future holds.
Uncertainty puts most, if not all, of your assets at risk. Estate planning enables you, and your family, to anticipate and avoid risks, and to take advantage of opportunities, in an uncertain future. When you, or your family, take actions in the face of situations beyond their control that are laid out in a plan done years beforehand to avoid losses, then the fees paid to the attorney for that plan are worth every cent.
Matthew Erskine is managing partner at Erskine & Erskine.
