If you’re trying to avoid religion or politics this Thanksgiving dinner, try estate planning. After all, a will is more than just a piece of paper — it’s an opportunity to shape your legacy, assist those you love and advance the causes you believe in.
Yet, in California, arbitrary and vague rules have largely made it impossible to create one without expensive attorneys. That needs to change.
Creating a will in California can cost upward of $400 in attorney fees. That price is too steep for many, but a relative bargain when compared to the alternative — probate — which may be necessary if someone dies without a will. If a loved one’s estate goes to probate, then the family may be on the hook for substantial costs — an attorney may receive $4,000 to guide an estate valued at $100,000 through the probate process.
In some ways, California law acknowledges this financial barrier. State law allows Californians to handwrite their will, even without witnesses. But since most people don’t know how to correctly draft a legally enforceable will, there is real potential for making costly mistakes.
Why should only options be choosing between expensive legal fees or gambling on an uninformed individual’s grasp of the probate code?
In truth, probate code is not so complex as to require going to three years of law school and passing the bar to demonstrate your competency. What makes a will a complex document isn’t the law but rather the fact that it is an expression of our complex relationships — to dear friends, to significant others, to blood relatives and to particular causes. Arguably a good therapist is more important to crafting a will than an expensive lawyer. An honest lawyer would tell you as much.
Unfortunately, the law does not reflect that reality.
California law prohibits what it refers to as the “unauthorized practice of law.” The idea being that society does not want individuals performing potentially life-altering services on others without having first demonstrated competency in rendering those services. That’s why we send aspiring professionals in medicine, dentistry, accounting and the law to graduate school and make them earn a license to practice in their respective fields in California.
But this vague ban has some bad consequences — namely, guaranteeing that only lawyers can render services, even if they are simple and loosely adjacent to the practice of law, like creating a will. The ban prevents others who possess the requisite skills from filling in gaps in service at a lower cost. As a result, millions of Californians are left without the ability to create a will.
Courts have not been helpful in clearing up what constitutes the “practice of law.” Acting in a clerical capacity or as a scrivener is not legal work, which is why, for example, real estate agents can assist with certain legal documents. It’s less clear from a legal perspective however if things like online templates for completing wills, offered by companies such as LegalZoom, are a practice of law. In 2020, for example, that company was sued in California for alleged “unauthorized practice of law.” (The parties settled for an undisclosed amount.)
Despite the online legal services market forecast to surpass $11 billion this year, few people will want to invest in creating a business in the sector as long as there is ambiguity about whether performing certain legal-adjacent services is illegal. As noted by one researcher in the Georgetown Journal of Legal Ethics, unauthorized practice of law rules may traditionally “be thought to be about protecting the public from incompetent legal service,” but, in practice, they appear to also serve as a “weapon by lawyers to protect their own economic interests.”
Californians do not need lawyers to perform every legal-adjacent activity, especially when it comes to receiving guidance on their wills. That the law already allows laypeople to write their own indicates how unnecessary lawyers are in their creation.
Other states have already made an effort to clarify their position. In North Carolina, for example, the practice of law, “does not include the operation of a Web site by a provider that offers consumers access to interactive software that generates a legal document based on the consumer’s answers to questions presented by the software.” That should be the law here in California, too.
A similar clarification in our law would allow for increased investment in the creation of accessible, affordable platforms for legally adjacent services, such as will creation.
Lawyers should not have a monopoly on helping Californians leave their intended legacy. A will is too important to allow ambiguous laws and professional greed to stand in the way of people receiving guidance on how best to pass on their assets and leave this state an even better place.
Kevin Frazier is a recent graduate of UC Berkeley School of Law.
