Estate Planning

ChatGPT, Esq. Has Entered the Legal Chatroom

Sara K. Osinski —

ChatGPT passed the bar exam on its first try. To make matters more alarming, ChatGPT can draft someone’s Will in a matter of minutes.

Before sounding the unemployment alarms, what is ChatGPT exactly? ChatGPT is a chatbot powered by artificial intelligence (“AI”) that produces human-like responses in text form. Since its launch in November 2022, ChatGPT has provided quick responses to simple estate planning and estate administration questions; generated accessible online templates; and drafted briefs, responses, complaints, Wills, and trusts. Additionally, unlike attorneys, ChatGPT does not charge an hourly rate or a flat fee.

While ChatGPT may sound like an attorney’s nightmare, it will not be able to replace attorneys altogether. OpenAI, the creators of ChatGPT, warn that ChatGPT should not be relied upon for advice. In fact, when a user asks ChatGPT any legal question, the chatbot will warn the user as follows: “I’m sorry, but as an AI language model, I am not authorized to provide legal services or advice. It’s important to consult with a licensed attorney who is qualified to provide you with legal advice.” Despite this warning, when framing the question correctly, a user can eventually acquire a draft Will or trust template through ChatGPT. Although helpful, this template provides a false sense of security for the user, especially one who does not have a legal background in tax or trusts and estates. This means that if ChatGPT drafts a Will or trust, the user will likely need to do additional research, not only in the area of tax or trusts and estates, but also in other related substantive practice areas, to ensure the information provided is accurate, thereby leaving room for error, both human and computer.

Additionally, while ChatGPT is a helpful and cost-efficient tool, the user will need to ask the appropriate questions in order to prepare and execute their estate planning documents accurately. As there are many nuances to each person’s estate plan and complexity arising from the ever-changing tax code, there are many questions that a user may not consider if they are not familiar with the estate and tax planning process. For instance, if a user executes his or her ChatGPT-generated Will without asking ChatGPT (or a reliable trusts and estates attorney) how to do so under relevant state laws, if such Will is executed incorrectly, the consequences may be as serious as having an invalid and inoperable Will upon his or her death. Therefore, instead of the user’s assets passing according to his or her intent, the state law for those users who die with an invalid Will controls the distribution process.

This could also result in substantial unintended tax consequences that otherwise could have been avoided had the user consulted with a reliable trusts and estates attorney. The user may also fail to consider certain obligations that he or she has to his or her spouse (or others) under the terms of a marital agreement or certain marital obligations that arise under state law. When preparing estate planning documents, a reliable trusts and estates attorney not only considers the areas of tax and trusts and estates, but also may need to consider issuing arising in the areas of matrimonial law, corporate law and securities, real estate law, and intellectual property. Working with a law firm with a wide range of practice areas will generally result in the preparation of a comprehensive estate plan that can address all of these substantive areas of the law. Individuals without formal legal training will likely not know how these practice areas intersect in preparing an estate plan.

Another consideration to using ChatGPT as your trusts and estates attorney replacement is that estate planning and estate administration can be a highly emotional process. Therefore, if a user is utilizing ChatGPT while under a highly emotional state, fatal errors are likely to occur. Deadlines may be missed, information left out of a Will or trust, estate planning documents incorrectly executed, estate administration forms incorrectly filled, etc. Additionally, while ChatGPT may provide simple responses to legal questions, because its responses are computer generated, they cannot provide an emotional sounding board for a user who is experiencing intense emotions with his or her estate planning or estate administration process.

An additional consideration when thinking about using ChatGPT for estate planning or estate administration is that these documents involve personal and sensitive information that should only be shared between the user, the user’s attorney, and the user’s loved ones. While the user can take a multitude of precautions, any content created online using ChatGPT is at risk for being hacked or stolen by malicious hackers. A Will and other estate planning documents should be treated with the utmost care and attention, and that includes protecting the privacy of such documents.

While ChatGPT may be good at taking a test, due to the nature of the underlying technology, it may never be capable of genuine reasoning, providing human compassion, and applying creativity to an individual’s legal questions. There are a whole host of potential concerns and problems with using ChatGPT to prepare an estate plan. As such, this program should not be used as a substitute for a trusts and estates attorney.