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An estate planning practitioner should not underestimate the positive
impact technology may have on his or her practice. This article
provides an overview of how technology may be used to enhance your
wills, trusts, and estates practice. Focus is placed on specific
sources and products which are uniquely suited to a Texas estate
planning practice. Topics regarding the use of technology in a law
practice generally, such as establishing a website, using billing
software and time-management programs, and purchasing computer hardware,
are not covered. Likewise, sources or programs with a more
national focus receive only summary, if any, treatment. The
article concludes with a discussion of the innovative Nevada statutes
which allow wills and trusts to be completely in electronic form.
Caveats:
For a continuously updated version of this article, please go to http://professorbeyer.com/Articles/Technology.htm.
This section discusses some of the major document preparation
software packages designed for the Texas practitioner.
For a comprehensive list of estate planning software which includes tax
preparation and trust accounting packages, see Daniel B. Evans, Wills,
Trusts, and Technology – An Estate Lawyer’s Guide to Automation (2nd ed.
2004), Appendix A available at http://evans-legal.com/dan/wtt-new.html.
A very useful discussion may also be found in Ronald L. Lipman, How to
Build and Operate a Profitable Estate Planning and Probate Practice,
South Texas College of Law, Wills & Probate Institute, ch. L (2004).
FlexDraft is the brain-child of Houston attorney Barney Jones.
This innovative program creates wills, revocable trusts, irrevocable
trusts, and ancillary documents. Wills can be pour-over, simple,
disclaimer, bypass, and “second generation.” Revocable trusts may be
sole settlor or joint settlor, and can have any tax planning option and
subtrust option that are available using a traditional will.
Irrevocable trusts may be insurance trusts or gift trusts, either of
which may be drafted in either a sole or joint settlor format.
Mr. Jones explains that FlexDraft “is perhaps the most ‘plain
English’ of all document assembly systems available to Texas estate
planning attorneys. It uses short sentences, extensive headings, and
numerous cross references (all of which are automated, so they’re always
accurate). This facilitates a ‘front loaded’ drafting style: The
fundamental provisions of every will and trust are in the first 2 to 6
pages in clear, understandable prose. This eliminates the need for
explanatory memos and the risks they create.”
The user has an on-screen dialogue in which the system asks only
those questions that are relevant to the particular client. For
example, the system will address QDOT issues if – but only if – the
client’s spouse is not a United States citizen.
FlexDraft is a stand alone program, that is, it is neither integrated
within nor dependant on any word processor. Documents may be formatted
for either WordPerfect or Microsoft Word and, in either case, FlexDraft
automatically launches the selected word processor with each drafted
document. Users can switch freely between Word and WordPerfect format.
Further information about the program and how to obtain a trial copy
is found at http://www.flexdraft.com/.
ProDoc publishes two document preparation products relevant to estate
planning.
This ‘standard’ volume “comprises 35 forms representing basic estate
planning documents – wills, living trusts and medical powers of
attorney. The volume contains the forms [an estate planner needs] to
represent clients with uncomplicated estate issues, generally those not
subject to the federal estate tax.” For more information, visit http://www.prodoc.com/texas/forms_list/tx_sm-est-will.pdf.
Ronald L. Lipman, a Houston attorney, has prepared Lipman’s Wills &
Trusts which is a complete estate planning package that includes 312
estate planning forms. This program is advertised as
“sophisticated enough for a high-end estate planning practice, yet it is
also flexible enough to simplify the preparation of wills and trusts for
smaller estates. The volume includes 25 will forms, 25 revocable
trusts, 41 irrevocable trusts, family limited partnerships, buy-sell
agreements, prenuptial and partition agreements, as well as many other
related forms. The irrevocable trusts come in many varieties, including
life insurance trusts, education trusts, grandchildren’s trusts, section
142 trusts, section 867 management trusts, QPRTs, CRATs, CRUTs, GRATs,
GRUTs, supplemental needs trusts, and qualified income (‘Miller’)
trusts.” The program can also generate customized transmittal
letters. For additional information, visit http://www.prodoc.com/texas/forms_list/tx_lipman.pdf.
InterActive Legal Systems [ILS] publishes Wealth Transfer Planning
and bills the program as “a complete drafting and expert system designed
to suit the most demanding estate planning professional.” The
primary authors include Michael L. Graham of Dallas, Texas and Jonathan
Blattmachr who practices in New York City. Wealth Transfer Planning
provides a wide variety of documents including wills, revocable trusts,
powers of attorney, advice memoranda, client convenience documents, and
other related agreements and materials. In addition, Wealth Transfer
Planning offers extensive content-sensitive help during the drafting
process by providing explanations for each question and guidance to the
drafter. Warnings, where appropriate, are provided to guide the
practitioner and help avoid errors.
ILS advertises that an updated version will be available in April
2005 which will include a custom interface and run on the HotDocs
platform to enhance the program and make it more user-friendly.
For more information or to arrange a demonstration, you may contact
InterActive Legal Systems at (888) 315-0872, sales@ilsdocs.com,
or visit their website athttp://www.ilsdocs.com.
This section lists some of the Internet sites which have significant
focus on Texas probate law. For an extensive list of estate
planning sites in general, see Jason E. Havens’ Legal Research for
Estate Planners homepage at http://www.jasonhavens.net/ and
The Texas Probate Website athttp://www.texasprobate.com/main/links.htm.
Attorney Glenn Karisch out of Austin maintains a website at http://www.texasprobate.com/ which
is billed as “The Best Source of Information on Estate Planning, Probate
and Trust Law in Texas.” The site contains a wide variety of
useful information including forms and articles. Seehttp://www.texasprobate.com/professional/index.htm.
Perhaps the most useful feature of this site, however, is the tremendous
job Mr. Karisch does in tracking all Texas legislation relating to
estate planning matters. The discussion of 2005 pending
legislation is found at http://www.texasprobate.com/05leg/2005_bills.htm.
A portion of the author’s website is devoted to summaries of all
reported Texas cases dealing with estate planning issues that have been
handed down since 2000. The discussion of each case concludes with
a moral, i.e., the important lesson to be learned from the case.
By recognizing situations which have lead to time consuming and costly
litigation in the past, estate planners can reduce the likelihood of the
same situations arising with their clients. The summaries are
available athttp://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.
Articles and other information which may be useful to the Texas
practitioner may be found at http://www.professorbeyer.com/Articles/Articles.htm.
Noel C. Ice of Fort Worth maintains this website with extensive
information for the estate planner. The materials on pension
plans, IRAs, and related issues are especially comprehensive. See http://www.trustsandestates.net/.
El Paso attorney Richard T. Marshall sponsors this site which
concentrates on the legal issues of senior citizens in Texas and
contains a significant estate planning component. See http://www.texseniorlaw.com/.
The REPTL section of the State Bar maintains a website at http://www.reptl.org/ which
provides information useful to estate planning practitioners.
A portion of Crosby attorney Larry Anderson’s website is devoted to
estate planning issues and contains forms and information about a
variety of topics. Seehttp://home.earthlink.net/~laanderson/wills.htm.
Attorney Glenn Karisch out of Austin provides and manages “the” Texas
listserv for estate planners which boasts membership of approximately
1,000 individuals. The discussion on this listserv is of high
caliber and is extremely useful to anyone who practices in the wills,
estates, and trusts area. Mr. Karisch describes the list as
follows:
The Texas Probate mailing list is for Texas attorneys and other
professionals actively working in the estate planning, probate, trust
and estate administration areas. It is a forum for discussing current
developments and posing questions which arise in our professional
practices. It is not a forum for lay persons with personal estate and
probate questions, since this would tend to distract the list from its
main purpose, which is to provide a means for professionals to share
their experiences and expertise.
Follow this link to register for the listserv: http://mailman.io.com/mailman/listinfo/probate.
Houston attorney Mickey Davis has established a new web site at http://www.willdrafting.com/ which
is designed to be “the place for Texas attorneys to exchange information
about drafting wills and trusts.” Mr. Davis explains that his site
takes the idea of the study group and puts it onto the web. A user
may log on to the forum and post questions, comment about a new case, or
discuss the latest in office automation. A user may provide
interactive feedback to other members on any estate planning or probate
topic.
Although sharing some features of the Texas Probate Mailing List,
WillDrafting.com operates in a significantly different manner. Unlike
the listserv, postings on the discussion board are not sent to the
user’s e-mail address unless the user requests e-mail notifications.
Instead, the user visits the forum whenever he or she likes to gain
access to the postings. Once logged onto the forum, the user may
filter posts by category, topic, date, or member. Full text search
of current topics is also available. A convenient feature is that
the discussion board will remember when the user last visited the site
and, if the user so desires, display only posts made since the user’s
last visit.
As stated at http://www.elderlawblawg.com/,
this site “serves as a web portal and knowledge repository to federal,
state and local web information, resources and services related to Elder
Law and is provided as a public service by the Barber Law Firm (www.TexasAttorney.net)
in Houston, Texas. ELB’s purpose is to provide a dynamic forum for
Elder Law attorneys and other professionals who are involved in serving
the elderly to share their expertise, experience and current topical
information.”
D. Real Estate, Probate, and Trust Law Section of the State Bar of Texas
The REPTL section maintains a bulletin board for discussing probate
issues at http://www.reptl.org/board/.
This board is, however, rarely used.
Considerable controversy exists regarding the wisdom of making probate
records available on-line. Some counties have made probate records
available to one extent or another while others have determined that
access to such records should be limited to inspection at the
courthouse.
Below is a list of counties that have, to some extent, on-line access to
probate records. In some counties, access is merely to an index while in
others, the complete document is available for inspection.
The author makes no assertion this list is complete. For
comprehensive links to the courts in all Texas counties generally, see http://www.state.tx.us/category.jsp?language=eng&categoryId=6.2.1.
For links to statutory probate courts specifically, see http://www.courts.state.tx.us/trial/probate.asp.
A discussion of electronic filing of court documents is beyond the scope
of this article. Note, however, the unique consideration in a
probate context due to the importance of presenting the actual original
will document for court inspection. For the current status of
e-filing in Texas including a list of the counties in which e-filing is
permitted under specified circumstances, see http://www.courts.state.tx.us/oca/jcit/Efiling/EfilingHome.asp.
Computer software is rapidly becoming the most popular of the self-help
estate planning techniques used by non-lawyers. Although the
programs vary significantly in features and quality, they all operate
basically the same way. The program asks the user a series of
questions and based on the user’s answers, the program fills in blanks
in boilerplate text and prints out the resulting document. More
sophisticated programs ask the user a greater number of questions, plan
for additional contingencies, prepare different types of estate planning
documents, and provide greater opportunity for individualization.
Examples of document preparation software designed for non-lawyer users
include:
Several Internet sites allow the user, for a fee, to prepare a will and
other estate planning documents on-line. The user answers a series
of questions and the software generates the document. Some sites
assert that the document is reviewed by a specialist before it is
delivered to the user. The user receives the document by mail or
directly from the site and then follows the included instructions for
executing the document.
Examples of these sites include:
Plano attorney Dianne Reis maintains http://www.willsandprobate.com/ which
is very consumer-oriented. It is one of the few Texas law firm
sites to provide plain-English FAQs on topics such as ‘Do I need a
living trust?’ and ‘Who will get my property if I die without a will?’
It also has a basic estate tax calculator that visitors may use to
calculate the taxes that their estates will pay if they die this year.
The site is very fast-loading and easy to navigate.
Henry C. McFadyen, Jr. of Dallas has created a website, http://www.mywill.com/,
which includes several informative articles for non-lawyers (or
attorneys who do not specialize in estate planning). His articles tend
to go deeper than the usual question and answer approach but they are
not overly technical. He covers the basics of estate planning as
well as required distributions from retirement plans and the liability
of one spouse for the debts of the other spouse.
San Antonio attorney Paul Premack maintains a website geared toward
elder law issues at http://www.premack.com/.
Among other things, the site contains a searchable archive of the past
fifteen years of weekly articles he has authored for the San Antonio
Express-News. Personalized forms for powers of attorney and other
disability planning documents are also available for purchase.
Estate planners recognize the importance of a client maintaining a
comprehensive inventory of assets such as bank accounts, insurance
policies, stock holdings, etc. so that the client's survivors will be
able to locate these assets.
As discussed in Susan B. Shor, Digital
Property and the Law of Inheritance, Tech News World, Feb. 22, 2005,
it is also important for a client to keep a comprehensive inventory of
technology information. Ms. Shor writes:
If a password list is part of your estate planning, a number of issues will be alleviated. Create an inventory of URLs, Web content, e-mail passwords and any other property an heir [or beneficiary] will need access to.
Provided this list is kept in a secure location, such as a safe deposit
box, this appears to be an excellent idea. The list would also
need to be updated on a regular basis because computer users frequently
change passwords and user names as well as add or subtract from the
types of things kept or accessed electronically.
In 2001, Nevada became the first, and so far only, state to authorize
wills and trusts to be evidenced by electronic means. This section
summarizes the key provisions of this ground-breaking legislation.
The statute requires that a testator’s electronic will must be “written,
created and stored in an electronic record.” Nev. Rev. Stat. 133.085
(1)(a) (2001). However, the statute does not indicate a
requirement as to what type of electronic record the will must be stored
on, such as CD, DVD, floppy disk, hard drive, memory card, or other
means of electronic storage.
Under the Nevada statute, the electronic will must contain the date and
the testator’s electronic signature. Nev. Rev. Stat. 133.085 (1)(b)
(2001). The Uniform Electronic Transactions Act defines
“electronic signature” as “an electric sound, symbol, or process
attached to or logically associated with a record and executed or
adopted by a person with the intent to sign the record.” Unif.
Electronic Transactions Act § 2(8). Some methods that may satisfy this
requirement are signature by facsimile, typing a name at the end of an
e-mail, or including a personal identification number.
In addition, the electronic will must include “at least one authentication characteristic of the testator.” Nev. Rev. Stat. 133.085 (1)(b) (2001). An authentication characteristic is further defined within the same statute as a unique characteristic of a person that can be measured and recognized in the electronic record as “a biological aspect of or a physical act performed by that person.” Nev. Rev. Stat. 133.085 (6)(a) (2001). An authentication characteristic may be a digitized signature, voice recognition, facial recognition, a retinal scan, a fingerprint, or other type of authentication. Nev. Rev. Stat. 133.085 (6)(a) (2001).
The statute also provides that a “digitized signature” is a graphic image of the testator’s handwritten signature that is “created, generated or stored by electronic means.” Nev. Rev. Stat. 133.085 (6)(c) (2001). A proponent of the statute pointed out that the digital signature pad frequently utilized in retail and department stores in connection with purchases made with credit cards or bank cards is already in widespread use, and would be one likely method of authentication. Matthew E. Woodhead, Comments on Senate Bill 49 (‘SB 49’)—Nevada’s Uniform Electronic Transactions Act 5.
The statute also requires that the electronic record containing the testator’s will be created and stored in a manner so that there is only one authoritative copy of the will in existence. Nev. Rev. Stat. 133.085(1)(c)(1) (2001). An authoritative copy is a copy of the electronic will that is “original, unique, identifiable and unalterable.” Nev. Rev. Stat. 133.085(6)(b) (2001).
The authoritative copy of an electronic will must be created and stored in a manner so that the testator maintains and controls it, or the testator may designate a custodian to do so. Nev. Rev. Stat. 133.085(1)(c)(2) (2001). This simply means that either the testator or the testator’s designated custodian in the State of Nevada must have control of the electronic record. Matthew E. Woodhead, Questions and Answers Regarding Amendments to SB 33 to Allow Electronic Execution of Wills 3.
The electronic will must also be created and stored in a manner that will make attempted alterations of the authoritatative copy readily identifiable. Nev. Rev. Stat. 133.085(1)(c)(3) (2001). By requiring a security procedure such as the biometric authentication requirement, any subsequent attempts to alter the electronic will without complying with the authentication requirement will void the electronic record or will be readily apparent in the record. Matthew E. Woodhead, Comments on Senate Bill 49 (‘SB 49’)—Nevada’s Uniform Electronic Transactions Act 6.
Additionally, the statute requires that the electronic will be
created and stored in a manner so that each copy of the authoritative
copy is distinguishable from the authoritative copy, readily
identifiable as a copy rather than as the authoritative copy. Nev. Rev.
Stat. 133.085 (1)(c)(4) (2001).
The Nevada statute providing for the use of electronic wills was created
with the convenience factor in mind. The concept of an electronic
will was tailored to tech-oriented California clients. At the
time, biometric authentication technology was growing rapidly, and it
seemed that the software that would enable the attachment of an
authentication characteristic to an electronic will document as required
by the statute was on the horizon.
Those individuals supporting the statute did so not only for the
convenience of the citizens, but also in recognition of the rapidly
changing nature of modern society. Motivation stemmed from the
realization that in the near future, all legal transactions may be
executed electronically, and Nevada had the opportunity to be a leader
in this area. Hearing on S.B. 33 to Allow Electronic Execution of Wills
Before the Assembly Committee on Judiciary, 2001 Leg., 71st Sess. (Nev.
2001) (statement of Matthew E. Woodhead).
Although the expected push of development of the needed software has
not yet occurred, and the needed technology is not yet available, Nevada
attorneys are optimistic that it will be in existence within the next
few years. Telephone Interview by Meredith Thoms with Matthew E.
Woodhead, Attorney, Hale Lane Peek Dennison and Howard, Reno, Nev.
(Sept. 26, 2003).
[The author acknowledges with appreciation the assistance of Ms.
Meredith Thoms, J.D., in the preparation of the material on electronic
wills and trusts.]
In publishing this article, the author is not engaged in rendering
legal, accounting or other professional service. If legal advice is
required, the service of a competent professional should be sought.
© 2005 Gerry W. Beyer