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Probate & Property

[Note: This column was originally published by the Real Property, Probate and Trust Law Section of the American Bar Association in Probate & Property, Vol. 12, No. 4 (July/August 1998).]

Windows Software for Estate Drafting

By Daniel B. Evans, Technology-Probate Editor

This column describes three Windows programs for drafting wills and trusts. The advantage of these programs over general purpose document assembly software is that the programs come with built-in form language for wills, trusts and other documents. The programs are "ready to run" and the user need not spend any time on forms development or conversion. That is the programs' disadvantage as well, because the user may not like the style or content of the forms.

Except as noted below, all three programs can create wills or living trusts, with options for marital gifts of the entire estate, a stated fraction or according to a marital deduction formula; marital deduction trusts for the surviving spouse and "reverse QTIP" trusts for generation-skipping tax planning; unified credit trusts for the surviving spouse or children; common trust funds for children; and separate trusts for children. How choices are made, and the terminology used to describe them, varies among programs. All of the programs will create durable powers of attorney and letters to clients, and some will also create other estate planning documents.

All of the programs claim the ability to create documents for different states, but the forms may not really vary much from state to state. The programs seem to start with a basic set of clauses, modified to conform to the laws of particular states but not necessarily to the writing style or common practices of those states. For example, in using these systems to prepare documents for a Pennsylvania resident, I ran across several questions and provisions that were either superfluous or made no sense under Pennsylvania law. They did not do any harm and were not necessarily wrong, but they were not something I would expect to see in a document prepared by a Pennsylvania lawyer.

The programs can generate word processing files in either Microsoft's Rich Text Format (.rtf) or in a file format compatible with one or more versions of Corel's WordPerfect. Do not expect the formatting to be very sophisticated. The programs store the text of the forms internally in a format designed by the programmer and convert to a word processing format as the last step in the process. As a result, the program will underline and capitalize as needed and number paragraphs consecutively but cannot use any of the special features of the popular word processing programs.

All of the programs provide online guidance for the choices that are available in drafting documents, and can save and retrieve client information used to create documents. The Cowles and DWTA systems are written for Windows 3.1x and will also run under Windows 95, but Wealth Transfer Planning is written for Windows 95 and will not run in Windows 3.1x.

Cowles Document Generation System
The Cowles Document Generation System consists of three separate programs. Trust Plus creates revocable trusts, pour over wills and general powers of attorney. Trust Plus Life Insurance creates irrevocable life insurance trusts, and Will-Do-It creates different kinds of wills.

The Cowles program organizes its data in "sessions," containing both client data and the phrases and documents selected for the client. After entering the information to be merged into the documents, the user selects the documents to be created and the phrases to be included. It is a hierarchical or checklist kind of system, in which the choice of particular clauses may then require choices about variations on that type of clause or that section of the document.

For example, after the user specifies whether to create a family (unified credit) trust, the program allows the user to select the distribution provisions that will apply for both income and principal. Each clause is numbered or lettered, and the written documentation (and on-line help) provides a summary of each optional clause. The text of each clause can also be viewed before it is selected.

After the merge information is entered and the clauses are selected, the user can view the final list of clauses to be assembled, then merge the names and other information into the clauses and edit them. When editing within the system, the entire document is not displayed, but the user is given a list of the clauses included in the document, any of which can be viewed and modified. After editing is completed within the system, the document can be exported to the user's word processor for further editing or to be saved in final form and printed.

Although the program comes with the clauses prepared by the publisher, the user can make permanent changes to the form language of the different clauses. This is not done easily or without risks. The internal clauses include special codes to control formatting and the way names and other words and phrases are inserted into the clauses. Changing those codes could have unpredictable results.

One substantive limitation of the system is that the marital deduction formula is a pecuniary formula, while the other two programs (discussed below) give the user a choice be-tween a pecuniary formula and a fractional formula. The program also appears to have no "reverse QTIP" or other GST planning provisions.

Because of an emphasis on revocable trusts, the system contains a number of forms and letters to assist in the transfer of assets to the revocable trust. This feature could be very useful to a lawyer who creates and funds many of these trusts.

Drafting Wills and Trust Agreements (DWTA) by Robert P. Wilkins was one of the first manual drafting systems. Different phrases and clauses were analyzed and organized, and the user could put together a sophisticated and coherent document by making certain decisions about the content of the document and then following the instructions in the book. Wilkins was also one of the first to automate a comprehensive drafting system. The current release is version 7.0. After the program is installed, it asks some basic questions about the terms, style and content to be used, such as whether to use the terms "State" or "Commonwealth," "County" or "Parish," "executor" or "personal representative." It also allows the user to change common phrases, for example, substituting "give" for "give, devise, and bequeath" and "appoint" for "nominate, constitute, and appoint." This procedure allows the user to customize the documents without having to answer the questions for every document.

The user can modify the form language used in the different clauses, just as in the Cowles system, with the same attendant risks. The DWTA program also identifies any changes when a program update is released, so that the user can reconcile changes by either accepting the new language or keeping the user's modifications. After the user has selected the general form of document to be created, the program conducts an "interview" to determine its content. Many of the questions are in checklist form, so that the user can click on a list of options to include some or all of them in the document. When the interview is finished, the program asks the user if the documents should be assembled and if mirror documents should be created for the client's spouse. That eliminates the need to answer the same questions twice when preparing documents for a married couple.

A special feature of the program is that it can create both a written synopsis and a graphical flow chart that summarize the documents created. The graphical flow chart has brief descriptions of the different provisions of the documents in boxes connected with lines that show the flow of assets at death.

Wealth Transfer Planning
Wealth Transfer Planning (WTP), which is part of RIA's Estate Planning System, is the most ambitious and complex program of the three. It includes not only the usual wills and trusts with marital deduction, life insurance and GST planning, but can also prepare qualified personal residence trusts (QPRT), grantor retained annuity trusts (GRAT), charitable remainder trusts, charitable lead trusts, a trust for a minor under Code  2503(c), a joint revocable trust and even a family limited partnership agreement. My major concern about the WTP system is that it asks too many questions about what might be considered "boilerplate." It is tedious to answer the same questions in the same way repeatedly for every document. This kind of software should reduce tedium, not create new kinds.

Wealth Transfer Planning comes on a CD-ROM and, when installed, takes up 50 Mb of hard disk space. The bulk results from WTP's built-in word processing program, SmartWords from the Technology Group. WTP uses SmartWords to ask questions and collect information, then assembles the documents and displays them within the SmartWords program, where the documents can be edited, saved, printed or exported to a different word processing program.

Operationally, there is not much difference between the SmartWords drafting engine and those employed by the other two programs. The program takes up a lot of disk space, however, and seemed slow on a 133 Mz Pentium processor with 16 Mb of RAM.

Vendor Information
Trust Plus ($2,990),
Will-Do-It ($790) and
Trust Plus Life Insurance ($890)
Cowles Legal Systems, Inc.
3410 Sky Park Blvd.
Eau Claire, WI 54701
( 800) 366-1730

DWTA on CAPS ($695)
West Group
620 Opperman Dr.
P.O. Box 64779
St. Paul, MN 55164-0779
(800) 890-5558

Wealth Transfer Planning ($1,895)
RIA Group
395 Hudson St.
New York, NY 10014
(800) 431-9025

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Daniel B. Evans, Attorney at Law
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