The Risks of AI in Estate Planning: When Machines Miss the Mark

There are three reasons to consider seriously before using this new technology to create the documents that will control how your estate will be distributed upon your death.

Limitations in AI Intelligence
Let’s understand the limitations. As they exist today, AIs aren’t an artificial form of intelligence. They don’t think or analyze. While they will continue to evolve, today’s AIs are not sentient. They do not think. Nor do they analyze. 

They’re rapid recall machines trained on billions of parameters. And they respond by using that data to generate responses using sophisticated programming. In other words, the systems are very good at quickly making assumptions. But they can’t yet make an assessment that professionally trained humans can when it comes to the best way to word a document when there may be three or four nearly equally useful options.

Risk of AI Hallucinations
Yes, current AI technology can “hallucinate.” But let’s dig a bit deeper into this and define the term “hallucination” in the context of AI. An AI hallucination occurs when a generative AI model produces inaccurate information but presents it as true, leading to potentially misleading or false results.

Consider the potential risks. For instance, Google’s most recent AI was asked, “Is it safe to run with scissors?” Even a three-year-old knows that’s a bad idea. But Google’s machine responded: “Running with scissors can be a great option for cardio!” This instance of AI’ hallucination’ should make us pause and consider the limitations of this technology.

In June 2023, a New York attorney used ChatGPT to draft a motion, which was found to contain fabricated judicial opinions and legal citations. The attorney, subsequently sanctioned and fined, stated that he “did not comprehend that ChatGPT could fabricate cases.”

Are these exceptions or the rule?
We asked Chat GPT and Gemini from Google a basic estate planning question. “In California, does a Trust allow an estate to bypass probate?” Neither software had any problem giving a good answer.
ChatGPT had the answer: “By establishing and properly funding a Trust in California, you can ensure that your estate bypasses the probate process, leading to a more efficient and private transfer of assets to your beneficiaries.”

Gemini even suggested, “It is best to use an attorney. Overall, a Trust is a valuable tool for avoiding probate in California. If you’re considering this option, discuss it with an estate planning professional.” This is better than its thoughts on scissors, at least.

However, as the questions got more complex, each often gave inaccurate responses, sometimes minor misstatements, and then sometimes responses that had no connection to reality, coming up with statutory and case law that did not exist. But the confident replies sounded authoritative. It’s kind of scary when you think some people might bypass attorneys to have an AI develop their Trust.

AIs Lack of Questioning Ability
A third condition is that AIs don’t have a primary skill that attorneys are trained for – asking all the appropriate questions. This means that the answers are only as good as the prompts one asks. When an attorney is formulating an estate plan, answers to one question will lead to more questions to clarify an intent and formulate proper strategies to honor that intent. 

But unless the AI is specifically trained in estate law, it will follow its’ programming to find answers, not more questions. The results of this will mean some parts of a Trust might be pretty good. But overall, it will inevitably miss many important issues.

For example, ChatGPT gave me a Trust that correctly indicated where the Trust maker wanted an asset to go upon his decision; it didn’t bother to consider what would happen if the named beneficiary died first. A good attorney will attempt to consider personal details about your family members, impacting how you want your property handled. Some folks have minor children or grandchildren. Others may have special needs.

But what if one of your kids is not good at handling the AIs that haven’t yet pried back layers? They need the prompter to do the peeling. In most cases, the documents AI can produce can’t be sufficiently customized unless the person prompting the software knows what questions to ask.

This creates a negative cycle in which, even if the documents meet the legal requirements for a valid will or Trust, the lack of probing questions—questions an estate attorney would normally ask—can result in additional expenses after you pass and hinder the proper execution of your intent.

So – Yes or No?
At this point, it’s clear that relying solely on AI for your estate planning is not advisable. There are a lot of places in life where AI can save you time and money. However, seeking professional legal advice is crucial when developing a proper estate plan. This ensures you’re not jumping over a dollar to pick up a penny.

The article was written by Matt Everson, CCO at illuminote.