Sometimes people think that the worst clients for lawyers to have must be other lawyers, since they would be second guessing them all the time. In my experience, though, academics are the worst clients. Some of them want to understand every single detail of how this works. That can be time-consuming and taxing.
But most of the time, the opposite is true. Clients don’t ask enough questions.
When I have a new client who previously used another attorney for their will or trust, one of the first things I do is summarize for them what they already have. And frequently they are surprised, or even shocked, to find out what is in those documents they had signed. I hear “Are you telling us that if one of us dies, the other one can’t change the trust anymore?” or “I thought if one of the kids died, that share would go to their kids?” But that’s not what it says.
And usually this is when something comes from another attorney, because I do make a real effort to make sure my own clients understand the main terms of what they are about to sign. But even then, they don’t always get it.
Let me take you back to the spring of 2020, in the first few months of the pandemic. For a while we couldn’t have clients come into the office, even if it was just to sign the final documents. Sometimes we could arrange a signing in the parking lot, but sometimes not. Sometimes there was just no way for them to be in the physical presence of two witnesses plus a notary, which is what is required for a regular will.
So I got creative. Alaska statutes allow for a “holographic will” which doesn’t require a notary or witnesses. It does, however, have to be written out in the testator’s own hand. It isn’t quite as good as having a regular “self-proving will,” but it is better than nothing.
So I stripped down my will template to the bare minimum of what would be needed. After all, some of my clients have arthritis or tremors, or otherwise can’t write a whole lot. In those situations, I would customize the document, putting in the names and other information they had given me, and then email it to them. But I needed to make sure they didn’t just print it out and sign it, because then it would not be a valid holographic will, since it would not be in their own hand. I made it a point to tell them that at least twice on the phone, and then I put right on the top of the document: “Do not sign this document. You must copy it out in your own hand”.
And nonetheless, quite a few of them just printed it out and signed it.
We often mistakenly assume that people understand what we are telling them. But estate planning is complicated. And people often do not ask the next question because they don’t even understand the previous answer.
When I review documents with clients, I am usually in a position to look right at their faces to try to gauge whether they are “getting it”. Some estate planners think that we will eventually be replaced by Artificial Intelligence. I don’t think that will ever happen. There is no way for an AI to accurately judge whether somebody is understanding what you’re telling them, and then try to explain it a different way so that they do understand.
Heck, most of these AIs can’t even narrate a YouTube video properly.
On a separate note: A few months ago in this column I reported on the Corporate Transparency Act, which requires almost anyone with a small business corporation or LLC to file a report with the federal government by the end of this year. This doesn’t apply to living trusts, but it does apply to most small business entities, even if they just have a single owner (or even if they’re owned by a trust).
When I last mentioned this, a federal judge Outside had just ruled that the CTA was unconstitutional. Given that the deadline for filing is the end of this year, I assumed that by now the issue would be resolved one way or the other. Unfortunately it still isn’t. The judge did not enter a nationwide injunction, and the case is being appealed but is apparently still at the circuit court level, which means it is not likely to result in a U.S. Supreme Court decision before the end of the year.
This issue of the Senior Voice should come out about the beginning of November. That means we have one more issue that will be out safely before the end of the year. Next month, Lord willing and the creek don’t rise, I will try to update everyone on the issue.
Kenneth Kirk is an Anchorage estate planning attorney. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. And if you don’t understand this disclaimer, we’re both in trouble.
