I fairly often meet with someone who has done or attempted to do a do it yourself Will and wants me to tell them if it looks like they got it right. I think these people are really on to something. That is the question: did i get it right? Here are a couple of tips for thinking about this. If I do nothing other than read the DIY will you have drafted, I will have no idea whether you got it right. The limit of my insight will be whether I understand what it says and whether it was executed in compliance with the requirements of the law.
You might be under the impression that these are the most important criteria: does the Will make sense and is it legally enforceable? But that’s not the case. I can understand exactly what the Will says and have no idea what it does, because there are important parts of the outcome that are not defined within the four corners of the document. Even if had this additional information about what your assets are, how they are owned, whether they are controlled by some arrangement other than your Will and what those other arrangements provided, I would still not know whether your Will when understood in light of this other information fulfilled your goals — whether it properly expressed and implemented your intent. Even then might not know whether it adequately protected against risks which are peculiar to your family and the characteristics of these people about whom your care.
The starting point of planning is to define what your goals are, then to understand what your options are for accomplishing your goals, then to understand what you own and how you own it, and then the characteristics of those who are your beneficiaries or might be your fiduciaries. Then, and only then, can you begin the business of expressing the plan in a Will (or any number of other documents which might be appropriate). Most people putting together a DIY Will start at the last step and never touch the multiple steps necessary to understand what the Will should do, whether it not it does those things, and whether or not legal documents or arrangements other than the Will are necessary to accomplish you goals.
I understand the appeal of a DIY Will you might find on the internet. It seems like a good way to save time and money. The problems are that after you sign that Will, you probably will not have gotten it right, but more importantly, you won’t know whether or not you got it right, which was one of the reasons to do the planning in the first place. Furthermore, when the time comes to use the Will after your death, your loved ones may pay a price for your shortcuts.
The Importance of Having an Estate Plan
If you are contemplating using a DIY Will form it is hopefully because you understand the importance of having at least a basic estate plan in place. Without at least a basic Will in place, the State of North Carolina (or your state of residency at the time of your death) will decide what happens to your estate assets when you die. Not only is this unlikely to produce the result you want, but it is a more expensive way to administer an estate than one with a proper even simple Will.
You may think you don’t have a large enough estate to worry much about what happens to it; however, if you really think about it, that is likely not the case. In fact, I sometimes find that the more people have the less it means to them, and vice versa.
As much as we focus on what we own when we come to the estate planning table, it often turns out that the planning is more about people than things, more about those you love, that about your balance sheet. Without a thoughtful and competently defined and implemented estate plan, you risk leaving a mess and you miss out on the opportunity to gain the peace of mind of knowing you got it right.
Who Pays the True Price of DIY Wills?
So while it is tempting to simply download a Last Will and Testament, fill in the blanks, and call it a day, it’s unlikely to be what you need or serve your goals, and it will not be a substitute for working with and experience estate planning attorney who can help you get it right. With your DIY will, no one will no what errors, shortcomings or pitfalls you created until after you are gone. There is no testing the Will until it is used after your death. At that point, you are no longer around to fix any problems that may arise – and there is a very good chance there will be problems, such as:
- Failure to distribute the entire estate – one of the most common problems that arise when a DIY Will form is used is the failure to distribute the entire estate. One of the primary reasons for executing a Will is to avoid the state’s intestate succession laws. You will have assets not controlled by your Will and may not understand how they are to be handled. Believe it or not, even the basic question of how an asset passes under a Will can differ from state to state.
- Stale language or law – Many DIY Will forms have been floating around the internet for years. Applicable laws may have changed in the interim, making some of the language in the form, or the entire form, stale from a legal standpoint.
- Not state-specific – many of the laws that govern wills and estates are state laws. For this reason, a Will must be state-specific to ensure it will be valid. Many DIY forms, however, are generic and do not include state-specific considerations. I have seen internet based Wills that purport to be state specific but have no state specific provisions.
- Not understanding which assets are controlled by the Will – using one DIY legal form is dangerous enough. As I noted above, it is possible to know what the Will says and either have no idea about which assets it controls or worse, to be mistaken as to which assets it controls. In this case, you don’t really know what the outcome will be.
- Improper execution – for a Will to be valid, it must be executed using the proper procedures, such as the need to be executed in front of two neutral witnesses. Because those can also vary from state to state, a generic form doesn’t work.
Mostly the Risk Lies with What you Don’t Know
One key step of the planning process is assessing what might go wrong and taking steps to reduce the risk of error. Even most attorneys don’t have sufficient experience administering estates to identify this potential pitfalls, seeing how they apply to you, and putting into place protective planning measures.
So, I think you should work with a lawyer to do this, but even then, it’s important to be sure you are working with an attorney who has the requisite experience to fill in the gaps of your own knowledge, work with you to identify your goals, and make sure you get not only a Will, but all of the other planning you need to get it right. Ultimately, your loved ones may pay a hefty price for your use of a DIY Will. The easy way to avoid the dangers inherent in using DIY Wills is to retain the services of an experienced estate planning attorney to help you create your Last Will and Testament.
Contact an Experienced Raleigh Durham Chapel Hill Estate Planning Attorney at Clarity Legal Group
If you have additional questions or concerns about why using a DIY Will form is not a good idea, or if you want to get started creating your Last Will and Testament, please contact the Raleigh, Durham, Chapel Hill attorneys at Clarity Legal Group® by calling us at 919-484-0012 or contact us online.