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Artificial intelligence (AI) and natural language processing (NLP) technologies have been buzzwords for several years, and their capabilities are continuing to grow. With the ability to analyze large sets of data and identify patterns, AI is transforming industries such as health care, finance and law. In the legal field, AI is changing the way legal drafting is done, with NPL technologies such as one you’ve likely heard of called ChatGPT now being used ubiquitously by lawyers. See “Maximizing the Potential of ChatGPT,” p. 31.
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Legal technology tools propelled by AI are transforming the way attorneys work and enabling them to provide superior and more efficient services to their clients. Let’s examine the impact of AI on estate planning by examining its capabilities, limitations and ethical implications. We’ll also examine how attorneys specializing in trusts and estates can use AI to enhance their practice.
AI and ChatGPT are sophisticated technologies that use machine learning algorithms to analyze data, identify patterns and generate responses or actions. In the context of legal drafting, these tools can help attorneys draft complex legal documents more efficiently and accurately. NLP technologies are particularly powerful because they can analyze vast amounts of legal data and provide relevant, customized responses in natural language. This means that attorneys and clients can interact with the technology in a way that feels natural and intuitive, making it easier to incorporate AI into the daily lawyering process.
The AI-powered chatbot ChatGPT from OpenAI provides extensive text responses in response to open-ended text queries. It was trained through reinforcement learning from human feedback. ChatGPT is relatively easy to use. Simply type your request into the ChatGPT website’s search bar, just like you would with a Google search. Yet, unlike Google, ChatGPT offers a thorough response in the same chat window as opposed to directing you to other websites to find your answer. You can ask the tool to summarize an article’s main ideas for you, write an email to a client explaining their estate plan or walk you through a trust’s main clauses as if you were in third grade. The more explicit you are in your request, the more thorough of an answer you’ll receive. The answers are as imaginative as their prompts allow them to be.
One of the most significant ways AI is transforming legal drafting is the speed and efficiency with which documents can be drafted. ChatGPT can generate a first draft of a legal document in seconds, saving lawyers valuable time. Additionally, these tools, when supervised correctly, can help ensure that legal documents adhere to specific requirements and best practices, reducing the risk of errors or omissions.
Estate planning is an area of law that has the potential to be significantly impacted by AI. Estate-planning documents such as wills and trusts are highly structured and require careful attention to detail. With AI tools, lawyers can quickly create comprehensive estate-planning documents that meet all legal requirements. This can save time and money for both lawyers and clients, while also ensuring that clients’ assets are protected and distributed according to their wishes.
Blockchain and Estate Planning
Imagine an estate plan like a box of important papers containing a will and trust. But instead of keeping that box of papers in a locked drawer or vault at an attorney’s office, you keep it in a special type of safe that’s protected by a different sort of lock and key.
Blockchain is a type of digital ledger, which is like a record book, that’s decentralized, meaning it’s not owned or controlled by any one individual or organization. Instead, it’s a network of computers that work together to verify and record transactions in a secure and transparent way.
In the context of estate planning, blockchain technology can be used to store information about your client’s assets and estate plan securely and transparently. For example, if your client creates a smart contract on the blockchain, it can automatically distribute their assets to the people they want to have them after they pass away, without any need for intermediaries like banks or lawyers.
One of the benefits of using blockchain in estate planning is that it can help to reduce the risk of fraud and errors. Because the blockchain is decentralized, no one individual or organization has control over it, making it more difficult for someone to tamper with or manipulate the records. Plus, because the records are transparent, anyone can see what’s been recorded on the blockchain, making it easier to spot any mistakes or discrepancies. The decentralized nature of blockchain can make it a useful tool for securely storing and sharing sensitive information related to estate planning, such as wills and trusts.
Even though the use of blockchain technology and smart contracts can make the estate-planning process more efficient and secure, there are still some legal considerations to keep in mind. One of these is how the blockchain-based estate plan will be enforceable by probate courts. Because the use of blockchain technology and smart contracts in estate planning is still a relatively new area of the law, there are currently no reported cases of probate courts enforcing blockchain-based estate plans. However, there have been some cases in which blockchain technology has been used in other legal contexts, which could be relevant to the enforceability of blockchain-based estate plans.
The adoption of blockchain in estate planning is still in its early stages, and it remains to be seen how it will be implemented and regulated in the legal system.
Overall, blockchain technology has significant potential to transform estate planning and provide greater security and efficiency in the transfer of assets. As the technology continues to evolve, it will be exciting to see how it will shape the future of estate planning.
Document Drafting Software
How do these new technologies compare to existing document drafting software? AI and automated document drafting software are two different types of technology that can be used for estate-planning documents.
Automated document drafting software is typically a form of computer program that generates legal documents based on a set of predefined rules or templates. These programs rely on pre-programmed algorithms and logic to generate documents based on a user’s input. This can make the process of drafting certain types of legal documents faster and more efficient.
There are several software tools available to attorneys for estate-planning document drafting, including Wealth Docx, Lawgic and InterActive Legal. These tools have similar capabilities to ChatGPT, with the ability to generate legal documents based on prompts and templates. However, the main difference is that these tools are specific to estate planning, while ChatGPT has a broader range of applications. ChatGPT is also available to the public for free, unlike traditionally costly estate-planning software. An attorney who doesn’t necessarily solely practice trusts and estates may not find it cost-effective to purchase software for their few estate-planning clients.
Of course, AI technology may seem like an easier and cheaper option, but a poorly written will (or any other estate-planning document) can cause problems when an estate is being managed, and the costs to fix these problems far outweigh the money saved by using a free online platform in the beginning. Estate-planning software is equipped to prepare sophisticated, highly tailored, state-specific documents taking into account complex and detailed information for each client that ChatGPT, in its current state, simply can’t come close to. The best it can do is a good draft or outline to use as a starting point.
Drawbacks/Ethical Considerations
There are potential drawbacks to using AI in estate planning. One of the biggest concerns is the potential for data breaches or privacy violations. It’s important for attorneys and clients to ensure that any AI tools they use are compliant with relevant data privacy laws and regulations.
One major concern is the potential for errors in the documents generated by AI. While AI can be highly accurate, there’s always a risk of errors or omissions, particularly if the software isn’t properly maintained or updated. This can be especially problematic in estate planning, when even small errors can have significant consequences for a client’s assets and distributions.
It’s important to note that AI isn’t capable of providing the same level of nuanced analysis and guidance that an attorney can. Another concern is the potential loss of the personal touch in estate planning. Many clients value the relationship they have with their attorney and the personalized advice and guidance they receive throughout the estate-planning process. While AI can certainly help streamline the document drafting process, it can’t replace the human element of estate planning and the value of personalized advice.
Lawyers can rest assured knowing that even though AI can quickly process large amounts of data, such as reviewing thousands of papers or drafting a contract clause, it can’t evaluate the results or determine what to do with that output.
Several ethical issues present themselves surrounding the use of AI for drafting estate-planning documents. One of the main concerns is the need for attorneys to be competent in technology. While AI-powered tools can help attorneys to work more efficiently, they also require a certain level of technical knowledge and training. Attorneys have an ethical obligation to be competent in the use of technology and to ensure that their use of AI-powered tools doesn’t compromise their clients’ interests. The American Bar Association (ABA) Model Rules of Professional Conduct requires lawyers to provide competent representation to clients, which includes staying up-to-date on the latest developments in technology.
Another ethical issue is the potential for AI-powered tools to perpetuate biases and discrimination in the legal system. AI-powered tools are only as unbiased as the data and algorithms used to create them, and there’s a risk that these tools may perpetuate existing biases in the legal system (for example, gender or cultural biases). Attorneys using AI-powered tools have a responsibility to ensure that these tools are programmed and monitored to mitigate bias and discrimination.
Additional ethical concerns that present themselves are those of fraud, specifically, the potential for AI-generated legal documents to be used to deceive or manipulate people. For example, a scammer could use an AI-generated will or trust to trick an elderly person into gifting them money or assets. It’s essential for lawyers and clients to be aware of these risks and take steps to mitigate them.
Privacy concerns are also significant when it comes to AI-generated legal documents. These documents contain sensitive personal and financial information that could be compromised if the AI tool isn’t secure. Lawyers and clients must ensure that any AI tool they use to generate legal documents is secure and complies with data privacy regulations.
The integration of AI technology in estate planning has the potential to provide significant benefits for trusts and estates professionals. However, it’s important for professionals to be aware of the potential challenges and limitations of using these tools and to ensure that their use is always guided by ethical considerations and legal requirements. By staying up-to-date on the latest developments in technology and using these tools in a responsible and ethical manner, trusts and estates professionals can provide their clients with the best possible service and achieve their goals in a more efficient and effective manner.
Electronic Wills
Electronic wills, or e-wills, are wills that are created, signed and stored electronically. E-wills can be created using AI-powered tools and stored on a secure blockchain platform. The enforceability of e-wills varies by state, with some states recognizing them as valid legal documents and others requiring physical signatures and witnesses.
One of the main advantages of e-wills is their convenience and accessibility. E-wills can be created and signed from anywhere in the world and can be easily updated and revised as needed.
Additionally, the validity and enforceability of e-wills may be challenged in court, particularly if there are concerns about fraud or undue influence. Courts may require additional evidence to verify the authenticity of an e-will, such as biometric data or witnesses who can attest to the client’s mental state and capacity at the time of signing.
The use of e-wills also raises questions about accessibility and digital equity. Not all clients may have access to the technology needed to create and sign e-wills, and some clients may be hesitant to use digital tools for estate planning due to concerns about privacy and security. Attorneys using AI-powered tools and blockchain technology for estate planning must ensure that their services are accessible and equitable for all clients, regardless of their technical expertise or resources.
Uses for AI
Here are some specific examples of how AI technology is being used in estate planning:
Document review and analysis: AI-powered tools can assist with document review and analysis, making it easier for trusts and estates professionals to identify key issues and evidence in disputes. For example, an AI tool could scan a large number of estate-planning documents to identify inconsistencies or missing information, which could help to avoid disputes down the road.
Legal research and analysis: AI algorithms can assist with legal research and analysis, enabling trusts and estates professionals to more quickly and accurately identify relevant case law and legal precedents. For example, an AI tool could analyze a large database of legal cases to identify patterns and trends, which could help to inform the advice given to clients.
Financial planning and management: AI-powered tools can assist with financial planning and management, providing more accurate and up-to-date advice to clients. For example, an AI tool could analyze a client’s financial situation and provide recommendations for investments and asset allocation based on current market conditions.
Medical decision making: AI algorithms can assist with medical decision making, providing more personalized and tailored advice to clients. For example, an AI tool could analyze a client’s medical history and recommend treatments or care plans based on their unique needs and circumstances.
Asset tracking and management: AI-powered tools can assist with asset tracking and management, reducing the risk of errors and ensuring compliance with legal requirements. For example, an AI tool could track the value of a client’s assets in real time and provide recommendations for asset allocation based on their goals and risk tolerance.
Looking Forward
AI technology is already making significant impacts on the estate-planning industry, and it’s clear that this trend will continue in the future. AI-powered legal drafting tools are becoming increasingly popular and more accessible to both attorneys and clients, as they offer a range of benefits, including improved efficiency and
cost-effectiveness. However, there are also ethical and privacy concerns surrounding the use of AI for drafting estate-planning documents, particularly with regards to data security and confidentiality.
Looking forward, it will be important for attorneys to keep up to date with state-specific laws and regulations surrounding estate planning, as well as the potential impact of emerging technologies such as blockchain on this area of law. Additionally, the enforceability of e-wills is likely to become an increasingly important issue in the years ahead.
As the legal industry continues to evolve, it will be essential for attorneys to embrace new technologies and adapt their practices to best serve their clients. While AI tools may not be able to fully replace human attorneys, they can certainly help streamline certain aspects of the legal process and improve the overall quality and accessibility of legal services.
In the below quote, Erik Brynjolfsson, director of Stanford University’s Digital Economy Lab in Stanford, Calif., highlights the impact of AI on the U.S. economy, particularly in the knowledge and information work sector:
Most of the U.S. economy is knowledge and information work, and that’s who’s going to be most squarely affected by this, I would put people like lawyers right at the top of the list . . . But I like to use the word ‘affected,’ not ‘replaced,’ because I think if done right, it’s not going to be AI replacing lawyers; it’s going to be lawyers working with AI replacing lawyers who don’t work with AI.1
Brynjolfsson’s view is that lawyers who embrace AI will have a competitive advantage in the legal industry, while those who resist it may be left behind.
As with any emerging technology, there will undoubtedly be challenges and uncertainties along the way. However, by staying informed and engaged with these issues, attorneys and clients alike can take advantage of the many benefits that AI has to offer while also ensuring that legal services remain ethical, transparent and effective.
In the end, AI technology presents both opportunities and challenges for the estate-planning legal industry, and it’s up to legal professionals and policymakers to navigate these issues in a responsible and effective way. As AI continues to evolve and improve, it will be interesting to see how it shapes the future of estate planning and the legal industry as a whole.
Endnote
1. www.cbsnews.com/news/ai-experts-on-chatgpt-artificial-intelligence-writing-program/.