Drafting Wills and Trust Agreements

Kelley Rating (one asterisk = lowest, to five asterisks = highest):

• Ease of navigation, design of interface and learning curve ****
• Instructional documentation and help system ****
• Carries out the goal of the product as advertised *****
• Overall usefulness *****

Drafting Wills and Trust Agreements (DWTA) version 9.0 (manufactured by Michael L.M. Jordan at Thomson Reuters) is a software program designed for the assembly of wills, revocable trusts and other documents. Version 9.0 was released for subscribers March 2, 2011, and became available for new subscribers as of March 15, 2011.

DWTA is based on the GhostFill document assembly platform. It develops documents with a question and answer interview approach and permits you to adapt clauses and content to your own drafting style. DWTA generates detailed flowcharts and plain-English client explanations.

DWTA prepares revocable trusts and simple, long form and pour-over wills with share and trust options. It prepares, among other options, letters and supplemental documents including: client intake forms, various client contact letters, assignments to trust, medical records release, disclaimer by beneficiary, Crummey letters and guidelines for trustees.

What's it All About?

In DWTA, document provisions are selected through a series of question and answer interviews. Tailored “models” of interviews for standard types of clients can be created for convenience in future drafting. You may modify the language used in the clauses referenced in such models and can save the interview selection list for future use.

As part of the interview options, you may select marital legacy allocations based on federal law, state law or a combination of state and federal law (for "decoupled" states). You may also select Clayton allocations for variable marital qualified terminal interest property (QTIP) election.

When the interview process is completed, DWTA compiles the form language and variables to produce the assembled document. You may then preview the assembled document and modify language to it at that stage, or in your word processor. You can easily create a spousal “mirror” of the finished document by directing the program to do so.

DWTA generates flowcharts demonstrating the flow of property directed by the dispositive provisions in the will or trust. The flowcharts may be easily copied and pasted into your word processor for inclusion with the client explanation. They may also be saved in a graphic file format.
Enhancements to the DWTA drafting provisions that have been made in version 9.0 include:

• Provisions addressing topics such as disinheritance and no-contest restrictions, spousal disclaimer in a joint trust, trust protector appointment and powers, bequests of interests in business entities, options for holding distributions in trust for minor beneficiaries, trustee indemnification, waiver of court supervision and determination of incapacity.
• New supporting documents (qualified disclaimer, Crummey notices and guidelines for organ donation).
• A Client Letter addressing an update and estate plan review taking into account the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (2010 Act) changes to the estate and gift taxes,
• Updated definitions to ensure that phrases such as "applicable exclusion amount" receive appropriate interpretations through inclusion in the definitional provisions.
• The “portability” provisions added by the 2010 Act, which both wills and trust documents now address. Language in the administrative provisions area has been added to authorize the executor to make a portability election in the first estate of spouses and to grant the executor discretion to allocate unused exclusion amounts to the spouse.
• Share/trust allocation provisions that permit flexibility in formula allocation provisions by setting up alternate share/trust allocations based on varying exclusion amounts using the new "TRA 2010 Details" dialog to assist drafting relating to the provisions of the 2010 Act. A new option for drafting flexibility allows you to allocate a specified sum to the marital share (in trust, outright or a mixture of both) with the remainder to the non-marital share (in trust or outright to beneficiaries).
• Marital deduction provisions that allow formula allocations to follow the $1 million applicable exclusion should it return in 2013 or to provide for a different resolution of that issue. A statement of the settlor's or testator's intent through the modified statement of intentions clause language regarding drafting under the provisions enacted in the 2010 Act is now included.
• Contingent future carryover basis language.
• A PDF document discussing drafting under the 2010 Act, which addresses new features and drafting modifications to use taking into account the changes made by the 2010 Act.
• A provision in the administrative provisions dialog for decoupled states allowing a trust to be divided into marital and nonmarital shares for state estate tax purposes.
• New drafting checklists are available in the main menu document checklists. You may select a document and a plan, and the checklist will be tailored to fit the plan.

When you open the program, a simple main screen appears displaying the system utilities and allowing you to select the type of document you wish to prepare. Selecting a document type brings up a screen from which you may choose to create the document, generate a flowchart or include client explanation documents (or a combination of all three).

A dialog box then appears from which you may select the specific document type (for example, simple, long form or pour over will). The DWTA dialogs and sub-dialogs shrink or expand according to the complexity of the dialog and your selections.

An interview screen will then appear based on the type of document you selected. (See an in-depth review of the interview process, above.)

You may select or deselect the topics to be included in your document from a list of topics. An “edit details” option at each topic allows you to make further selections of alternate language and insert your own specific language. When creating wills or revocable trusts involving marital/credit trusts, you get a dialog that offers a choice among types of marital deductions, generation skipping-transfer and QTIP plans. You also get the opportunity to create your own plan. After you select a plan, a dialog offers choices among the types of allocation (whether based on federal or state law), the type of marital deduction clause (pecuniary or fractional) and whether the marital legacy and family legacies are to be in trust or outright.

At the conclusion of the interview process, you may preview the document and the flowchart (if you made one) or load the entire compiled document onto your word processor.

Help and Support

While an orientation file and PDF tutorial are included, context help for the operation of the program is also available. For software problems and content questions you may contact Customer Technical Support at 1-800-277-9378 or by email at [email protected] .Training by telephone is also available.

The four-volume Drafting Wills and Trust Agreements, 4th treatise supplies substantive background for the documents included in DWTA.

Where to Get This Software?

Drafting Wills and Trust Agreements on GhostFill™ version 9.0 is available from Thomson/West at 1-800-762-5272 or online at http://west.thomson.com/products/books-cds/dwta/default.aspxhttp://west.thomson.com/store/product.asp?product%5Fid=DWTA.

DWTA is priced based on the number of individuals in your office that will use it.

Updated program files are periodically available for downloading from the DWTA website. You may request email notification of updates.

There are a number of will and trust drafting systems in this genre, including:

Wealth Transfer Planning (Jonathan G. Blattmachr and Michael L. Graham). This is a sophisticated automated drafting system for estate planning documents.

WealthDocs (Wealth Counsel), which is a software solution for the automated assembly of estate planning documents that includes a series of Practice Systems that automate drafting. This product was the subject of Tech Review, WealthDocx 7 (Nov. 11, 2009).

Lawgic (Lawgic Publishing Company), which is a state-specific program, available for New York, Maryland, California (wills, marital settlement and pre/post marital agreements), Florida and Georgia (wills, disability planning documents and a number of trusts).

Trust Plus (Thomson Reuters). This is a system that produces wills, revocable trusts and irrevocable trusts including trust funding documents and asset transfer letters.

Trusts & Estates magazine is pleased to present the monthly Technology Review by Donald H. Kelley—a respected connoisseur of the software and Internet resources wealth management advisors use to further their practices.

Kelley is a lawyer living in Highlands Ranch, Colo. and is of counsel to the law firm of Kelley, Scritsmier & Byrne, P.C. of North Platte, Neb. He is the co-author of the Intuitive Estate Planner Software, (Thomson – West 2004). He has served on the governing boards of the American Bar Association Real Property Probate and Trust Section and the American College of Tax Counsel. He is a past regent and past chair of the Committee on Technology in the Practice of the American College of Trust and Estate Counsel.

Trusts & Estates has asked Kelley to provide his unvarnished opinions on the tech resources available in the practice today. His columns are edited for readability only. Send feedback and suggestions for articles directly to him at [email protected].