About once a week, someone asks me whether "DIY" Wills work just as well as attorney-drafted Wills. When this happens, my response is always the same - would you remove your own appendix? What about a root canal - would you do that yourself? The answer is obvious, yet people continue to draft their own Wills every day; sometimes with the help of the internet, sometimes completely on their own. What they don't realize is that they could be making a huge mistake that could affect their family for years to come.
I have reviewed many DIY Wills over my 10+ years working as a probate and estate planning attorney. In every case, the Wills have been extremely deficient. These cases have helped me to identify five pitfalls that happen consistently, whether the Will is the product of the internet, a copy of a family member's Will, or the worst-case scenario - a handwritten (holographic) Will.
1. The Will is not executed properly. The number one deficiency I see with DIY Wills is with their execution (or lack thereof). When I meet with clients for an initial consultation, one of the first questions I ask is whether they have existing Wills in place. Many times, clients answer affirmatively and then show me a Will that was never signed. I also see Wills that are signed but not witnessed or notarized. Every state has different requirements on what formalities must be present for a Will to be considered valid. Many states require that two witnesses and a notary sign the Will after the Testator signs. Some states only require a notary. Some states only require witnesses. Without a complete understanding of the law, it is truly a guessing game.
2. The Will does not cover contingencies. One of the reasons so many people draft their own Wills is because it seems easy. You know you want your children to inherit your estate, and you know which one you want to be in charge when you die. So, why not save the money and do it yourself? The problem is that a lot can change between now and then. What if one of the children passes away before you? Do their children inherit their share of your estate, does it go to their spouse, or perhaps to your surviving children? Or, what if one of your children becomes disabled? Did you know that receiving an inheritance could disqualify a disabled person from receiving public benefits like Medicaid and Social Security? These are contingencies that an experienced estate planning attorney will talk through with you to make sure your documents provide for the worst-case scenarios.
3. The Will is not appropriate for the circumstances. This issue arises when people use a friend's or family member's Will to draft their own. I have seen several instances where a client has used a parent's Will as a template for their own. Though the original Will may have been drafted by an attorney, the problem is that the parent is in a completely different stage of life and perhaps lives in a different state with different laws. The Wills I draft for young parents are significantly different than the Wills I draft for retirees. In addition, the laws governing Wills and Probate are significantly different in Colorado than they are in Florida, for example. Just as physicians know exactly where to find your appendix, estate planning attorneys know exactly what needs to be included in your Will, based on your family situation and your stage of life.
4. The Will does not appropriately plan for minor children. Parents of minor children have an even greater interest in making sure their Wills are drafted correctly. The most important consideration for young parents is appointing a Guardian for their children, should both parents die or become incapacitated. There are many intricacies in selecting and appointing a guardian that should be handled by a professional. Another element that must be added to Wills when minor children are involved is a testamentary trust to hold the child's inheritance. The trust will need a trustworthy individual to manage it, as well. This is an area where I have found that DIY Wills are almost always deficient. However, even in cases where the DIY Will creates a proper testamentary trust, it is unlikely that the beneficiaries of non-probate assets, such as Life Insurance, are properly changed to ensure that the proceeds do not go directly to the child, but rather funnel into the trust. I give every client detailed, written instructions on how to handle these designations so the plan works seamlessly.
5. The Will lands you in probate court. The concept of probate can be confusing and overwhelming, and as we've seen above, having a DIY estate plan will likely make that process even more difficult. Probate is a court proceeding in which a representative is appointed to handle a decedent's estate and settle their affairs. In most cases, having a valid Will does not avoid probate. An experienced estate planning attorney, however, can discuss the probate process with you and give you some alternative options like Living Trusts, Beneficiary Designations, and Transfer on Death Deeds, if avoiding probate is a priority for you.
The reality is that all of us will eventually die. It is not a pleasant thought, but there is nothing we can do to avoid it. There is, however, something we can do to make it easier on our loved ones, and that is having a comprehensive, thorough, legally binding estate plan in place when our time comes. Your family's future is too important - don't risk it with DIY documents.
