Study after study reports that most Americans don’t have a financial plan or an estate plan. In recent years, the explosion of “robo-advisors” has promised widespread, low cost access to financial planning. The financial profession has struggled to determine the quality of this technological development, its potential to increase access for quality advice and its threat to highly educated and trained professionals. Professor Poppe addresses the same emerging phenomenon and potential threat to the legal industry in “The Future is Bright Complicated: AI, Apps & Access to Justice.” In this useful read for anyone considering the future of the industry, the author considers whether online providers driven by sophisticated machine learning and artificial intelligence (AI) will expand access to estate planning, drive doctrinal reform or threaten estate-planning professionals.
From research platforms to document management, Prof. Poppe details that emerging technologies are changing the daily work of all legal specialties, often increasing efficiency, especially of young lawyers. Will these innovations, however, ultimately fully automate work to the detriment of the legal professional? To investigate these trends in more depth, Prof. Poppe focuses on current consumer-facing legal technologies for will preparation. She starts by exploring whether, as promised, these technologies successfully expand access, reducing existing social inequities in estate planning. She then asks how we should assess the quality of the product given strict doctrinal requirements. How will we know that these wills meet the legal requirements and testamentary needs of the users? Finally, she suggests the profession deliberate carefully whether fully “substitutive technology” or “augmentative technology” will best serve the industry’s clients.
While it’s widely known that more than half of all Americans don’t have estate-planning documents, the reasons for this are more speculative than documented fact. Prof. Poppe reports on several studies and concludes that the many reasons to avoid estate planning include perceived complexity, high costs, limited access, undecided desires and simple procrastination. Those that choose estate planning today have common characteristics as well; generally, they’re white, college educated and may have experienced life events that changed their health or wealth.
Prof. Poppe considers whether current online estate-planning options might increase access to estate planning or merely extend today’s social inequities. Today, an individual seeking estate-planning help online can find informative resources, fillable standardized forms and, most recently, apps that automate drafting and administration of estate plans. To benefit from these resources, though, Prof. Poppe notes users must first have Internet access, which is in itself a limiting factor for parts of the population. Additionally, users must not only be literate but also understand the legal issues presented to make the proper selections for their circumstances. This hurdle further reduces the access population for do-it-yourself (DIY) estate planning. The author goes on to review potential benefits of online technologies relative to the various perceived reasons for not having estate plans. She concludes that hopes for current legal technologies to dramatically expand estate planning “ignore inequalities in access to online resources, overestimate the role of financial cost, discount the significance of psychic costs, and ignore popular understanding of estate planning as the domain of lawyers.”
While increasing technological options might improve access, the quality and durability of the legal product must also be assessed. Concerns for these quick-draft documents include accuracy, validity, enforceability and even administration. Prof. Poppe notes that “Many users of self-drafting programs likely lack sufficient legal knowledge to assess whether the will they have created achieves their testamentary desires.” Until more of these users die, there’s a minimal body of evidence to assess the strength of the documents. She notes, for example, that to be valid, most states have specific formalities that must be met for the execution of a will. Will preparation programs may offer state-specific instructions, but they lack the ability to ensure accountability. Prof. Poppe highlights that the biggest challenge for any kind of assessment of these documents may be defining the proper comparison tool. Many critics compare these autogenerated documents to the personalized documents created by practicing estate-planning attorneys. Proponents, in contrast, suggest the proper comparison is to a will self-drafted by a typical DIY layperson. Prof. Poppe adds that another comparison may be rules of intestacy for when no will exists at all, as is the experience of so many Americans. Prof. Poppe calls for better benchmark tools and assessments to qualify the product of legal technologies while testators are still alive.
Will preparation programs have existed for some time and continue to evolve from static resources to AI-enabled drafting programs. The author attempts to assess the likelihood that these technologies disrupt the legal profession. As a financial professional, I’ve seen first-hand a similar trend for algorithmic-based technology to offer consumers “personalized” financial advice. In this vein, I appreciate Prof. Poppe’s conclusion that to create predictions about the future of the profession, analyses must consider the success of the technology both as a product provider and as a potential substitute for professional service. Neither alone can fully meet the needs of clients in a way that’s likely meaningfully to diminish the profession.