Can I have a Paralegal or CPA Draft My Trust?

Quite often, we have clients, friends, and people we meet on the street ask us, “Lawyers are kind of expensive. Is it okay to have someone who isn’t an attorney—like a paralegal—write up my living trust?”

There’s a short answer and a long answer to this. The short answer is a rhetorical question: “Imagine you needed surgery, but your deductible was a little high. Are you willing to pay the full deductible and have a surgeon perform the surgery, or would you be okay with saving a few dollars by having a veterinarian pick up the scalpel?”

Having CPA or Paralegal Draft Trust

In a previous blog post, we discussed the problems associated with using online legal services like Rocket Lawyer for estate planning purposes. The draw of using a CPA or paralegal to create your trust is much the same as going the online route: saving on the upfront costs. But as we discussed in that blog, going this route invites serious problems down the road.

But if anything, the issues associated with having a non-lawyer create a trust are even more pronounced.

Drafting a trust is a legal matter, and thus it is actually illegal for a CPA or paralegal to create one.

In California, as in the 49 other U.S. states, it is illegal for a non-lawyer to practice law. In many cases, you may represent yourself in court, but a non-lawyer cannot stand in as legal representation. This helps to ensure the security and well-being of the public.

But what many people don’t realize is that estate planning does not fall into the same category as filing your personal or business taxes. It’s not a matter that an accountant can handle. It is actually an area of law.

There’s actually a very good reason for estate planning to fall under the umbrella of legal practice. Estate planning requires knowledge of a vast swath of legal topics: probate, taxes, property law, how government benefits work, and so on.

Can you draft your own trust? Yes. Technically, all you have to do is type one up and sign it in front of a notary. (Whether it will stand up in court is another matter.) But having someone assist you with the drafting of a trust, by definition, puts them in the position of giving legal advice, which non-lawyers cannot do. It’s actually a misdemeanor in the state of California. A CPA has the same legal authority as a 5th grader to draft a trust. (LegalZoom and other online services avoid invoking the wrath of State Bars by employing lawyers to handle estate planning paperwork.)

Obviously, the legal consequences of improperly practicing law don’t fall upon you.

But a trust created by a non-lawyer can create serious issues for your beneficiaries.

An improperly prepared trust may result in:

  • A large percentage of your estate being liquidated to cover estate taxes.
  • Assets being used to pay off debts due to unnecessary exposure to creditors.
  • Beneficiaries losing government benefits, such as Medicaid.
  • Beneficiaries not receiving assets as you intended.
  • Assets going unaccounted for in the trust, and thus passing through probate instead.
  • The trust being successfully challenged in court, undermining your intentions.

Don’t put yourself and the well-being of your beneficiaries at risk by having a CPA, paralegal, or other non-lawyer draft your trust. Think of it this way: Any non-lawyer who is willing to draft a trust for you is either willfully committing a crime, or is ignorant of the law. Neither of these qualities bodes well for the fate of any legal document they prepare.

If you need assistance with your trust, Toeppen & Grevious can help. For more information, give us a call at 916-400-4516, or send us a message using our contact form.