Neilson Law PA

The Unauthorized Practice of Law (UPL) is thought by some to be the occasional counsel or court appearance by a lawyer in a state where he or she is not licensed.  Unfortunately, the problem extends far beyond the mere taking from the mouth of lawyers in an adjacent state.  In Florida, UPL is frequently and frighteningly non-lawyers, non-law school graduates, and non-regulated lay persons drafting trust and estate documents under the guise of consulting.  I use the term “draft” loosely.  Typical “trust mills” as they are called, obtain, copy and regurgitate random trust provisions in a one-size-fits-all approach.  The common result is a template revocable living trust  sometimes valid, sometimes not, with absolutely no application for the specific needs of the signer.  Why would a person fall prey to such a trap, you ask?  The trust mills advertise free or low cost seminars to retirees who are on a fixed income.  The unbeknownst clients are led to believe that an attorney and other qualified professionals have been involved in the preparation in the documents.  In all fairness to the trust mill operators, there is an iota of truth in this misrepresentation.  Many of the trust provisions may have originated in the office of an attorney, however I do not believe that a compilation of unrelated legal drafting constitutes meaningful involvement by a professional.   The ramification of such a masterpiece is likely that the testator’s/settlor’s intentions will not be fulfilled by the documents.  Example:  a specific bequest does not state what occurs if the recipient predeceases the event triggering the gift.  The Florida Anti-Lapse statute causes the devise to pass to the recipients descendants as opposed to being added to the residue of the estate.

Another common result of trust mill documents is that they are not entirely effective due to lack of execution formalities.  A tip not known by many non- trust and estate lawyers is that trusts with testamentary provisions (creates a devise at death) must be executed with the same formalities as a will; i.e. two witnesses and a Notary Public.  Without these formalities, the testamentary distributions fails.

Use your instincts.  A client recently came to me requesting a review of her estate plan.  The results of my evaluation were unfortunate.  The documents lacked several essential provisions and further, exposed the client to losing homestead exemption on her personal residence.  Once I explained the problems that I found, she said “I just knew something was wrong.  I had a feeling.”

If you did not meet with an attorney prior to receiving your estate planning and/or advanced directive (POA, Living Will) documents; you should have an attorney review your documents for efficacy and accuracy.