Jan 1, 2021
In this age of “do-it-yourself”, I have seen an increase in the number of DIY Wills that I have filed with the Court for probate. Given the state of our economy, I understand why people are trying to save money by writing their Will on their own. The problem is that preparing a Will is not as simple as filling out a form. There are significant legal issues to consider, even for a seemingly simple Will. Below are a few problems that I have seen with DIY Wills.
A handwritten will, otherwise known as a “holographic will,” is one of the biggest problems I have seen. The Will must be entirely in the handwriting of the testator (the person making the Will) and signed at the end. The Court requires the testimony or affidavit of a disinterested person (a person not named in the Will) to verify the handwriting before the Will can be admitted to probate. If there is no one to verify the handwriting, then an expert must be retained, which is around $2000.
If the Will is not written entirely in the testator’s handwriting, then it must be witnessed and signed by two disinterested people, and one of those people must testify or sign an Affidavit that the Will being presented to the Court is the original. The only Wills that can be admitted to probate without testimony or Affidavits are “self-proving” Wills, meaning the signing of the Will by the testator and two disinterested witnesses was notarized. This is what you should get when an attorney prepares your estate plan.
Another common problem with DIY Wills is improper drafting. The drafter of the Will must ensure that gifts are made in the proper legal order and in proper shares. I have seen a Will that listed each child and stated what each child would get. The intent was that the children would all inherit a piece of real estate together. Unfortunately, the real estate was listed under each child’s name without specifying a particular percentage. Per the law, the entire piece of real estate went to the first child listed in the Will. The other children received none of the real estate.
Another similar problem is specific bequests. If Grandpa leaves his prized fishing pole to his favorite grandson, and the pole is nowhere to be found after Grandpa passes, poor Grandson gets nothing from his Grandpa.
A lawyer’s job is to know the law and draft documents in such a way that these problems do not occur. When you meet with an estate planning attorney, they are not only drafting your documents, but they are also looking at how your assets and debts are titled so that they get to the intended heir with minimized tax consequence. The money saved by drafting your own will does not justify the risk of unintended consequences from your estate. Please seek a consultation with an estate planning attorney before you buy a Will online or try drafting one yourself. Your heirs will thank you for it.