Opportunities to make your own will—often referred to as a DIY will or do-it-yourself will—are heavily marketed by a number of different internet companies. Some will forms are even free. At least one of the companies advertises that you can even write your own estate plan—complete with a trust and other technical legal documents—to ensure that your family is taken care of after you are gone.
If you are thinking of going the DIY will route, there are risks inherent in writing your own will or estate plan. Among those risks is the fact that making your own will or estate plan can lull you into a false sense of security that you have taken care of your family in the event you pass away.
In some cases, the reality is that you may actually have created some serious problems that your family will have to cope with while they are grieving losing you.
There are a number of different reasons why DIY wills and estate planning are risky. One of the main problems is that estate law is determined individually by each state. The law that governs an estate is the state where the person resides when he or she dies. Individual state laws vary greatly on a lot of estate issues, including requirements for executing a will, which is the process involved in signing it. If you have a non-qualified witness sign your will, it could be invalid.
Some online companies offering DIY wills and estate planning assure users that individual wills comply with requirements of the maker’s state of residence. However, commentary by lawyers who have checked online form sites report that state law compliance is not always assured.
Because you make a DIY will by going through a questionnaire, there is always the risk of inadvertently making a mistake, giving an incomplete or inaccurate answer, or skipping a question that doesn’t seem relevant. If any of those things happens, one of two results may occur: Either the will doesn’t do what you think it does, or it could be invalid in part or entirely.
Both of those situations have been reported by lawyers whose clients come to them with an executed DIY will or with an estate that has only a DIY will. Those same lawyers report that clients have presented DIY wills that include unnecessary terms, omissions, and even contradictions: all of which can complicate administration of an estate, or even invalidate the will in some circumstances.
One of the problems with DIY approaches is that estate planning involves a lot of legal, technical terms that have very particular meanings under the law: beneficiary, executor, personal representative, testamentary trust, inter vivos trust, residual estate, residual beneficiary, alternate beneficiary, successor trustee, durable power of attorney, advance healthcare directive, revocable trust, irrevocable trust, and on and on. Unless the person making the DIY will or estate plan fully understands the legal meaning of those terms, he or she may very well not understand the significance or implications of the provisions of the document produced through the questionnaire process.
Some advocates of DIY wills are quoted as saying: “A DIY will is better than no will at all.” Actually, that’s not always true.
If someone dies without a will, his or her estate will be distributed to individuals named by state law. When a person dies intestate—the term for dying without a will—there are some expenses that are paid by the estate to get a personal representative appointed and process the estate. But those expenses are generally far less than probate litigation expenses that would accompany one or more challenges to a DIY will: If a DIY will is challenged in court, or contested, the estate will need to use estate assets to pay court and attorney fees necessary to defend against the challenge.
If there is a challenge to a DIY will, in all likelihood there would be far less in assets to distribute to the beneficiaries when the claims are finally resolved. It could also take years to resolve probate litigation and distribute the assets. So, a DIY will with one or more provisions that may be invalid—or challenged by someone who thinks they may benefit if the will is not valid—is not necessarily better than no will at all. In reality, saving a little time and money now could cost your heirs and beneficiaries considerably more money and more time later.
If you are considering making a DIY will online, be sure to read the disclaimers on the site. Invariably, they will tell you that you are making your will in a place that:
When you use a DIY will, you are writing and executing a document to ensure that your wishes for distribution of your estate are carried out after you die. That document can have far-ranging legal implications for your family. Are you really comfortable fulfilling that responsibility without legal advice?
Saving time and money by making an online DIY will is an appealing proposition. But the pitfalls and risks are many. The best way to ensure that your wishes for taking care of your family and distributing your property are carried out after your death is to consult with an attorney. In North Carolina, our estate planning attorneys at the Twiford Law Firm are here to help. We offer a full range of estate planning services, including wills, trusts, powers of attorney, living wills, and probate administration.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.