Don’t Write Your Will Alone
Sept. 28, 2022
Properly drafted wills address who receives your assets and properties after your death when they are properly filled out. Your will names a personal representative (executor) who will carry out your directives. In addition to asset distribution, your executor makes a public notice of your death, files your final taxes, and records your will in probate court. If applicable, they will contact your named guardian(s) to care for your minor children or other dependents.
Many online options exist for creating a Do It Yourself (DIY) will. However, what seems a straightforward process can be fraught with costly errors that will fall to your beneficiaries and devalue your estate. DIY wills can be a reasonable choice in some limited circumstances, but they require careful research to understand state-dependent laws to get things right.
There are several problems common to creating a will by yourself, including:
The Will is Not Legally Binding
Each state has different requirements that constitute a legally binding will. Some basic premises hold, such as being over 18 and having a sound mind and body without being under undue influence or duress. Yet problems arise when overlooking fine print instructions. Some states will accept an oral will, and others require the will to be entirely in the testator’s handwriting. Certain states require notarization, including two witnesses, and some states require three witnesses. Online forms are often outdated and do not reflect current state law. Failure to execute a will with proper forms and in compliance with your state law will invalidate the document in court.
The Will is Unclear
DIY wills are generic templates that offer little guidance about important details. Often, the person making the will references a sibling without including their full name and residential address. There can be multiple brothers or sisters, and the court will not understand your intention. Clarifying these oversights takes time and money for the court to reconstruct your original meaning as best they can. If the court has trouble with vague or confusing descriptions of your property and associated instructions for its dispersal, they may opt not to follow your instructions.
The Will is Unenforceable
It is not permissible to put illegal or impractical conditions on your beneficiaries before receiving their inheritance. Each state has specific laws about what constitutes “illegal or impractical” conditions. For example, you may want to leave money to care for your pet, but a pet cannot legally inherit money. You have to identify a person to receive the money for the care of your pet or create a pet trust.
A Will and a Living Will are Different
A living will is an advance healthcare directive having nothing to do with disseminating property to heirs. If your end-of-life medical care wishes and subsequent funeral arrangements are in your will, the information is unlikely to be read until after your death. A will and a living will are completely different documents, but many people creating a DIY will mistakenly combine them.
A Will Does Not Distribute All of Your Property
Forgetting to provide instructions for every asset and piece of property is a common error in DIY wills. The court will not inventory assets and figure out where they go. Instead, they distribute property according to state intestacy laws, as if you had no will.
A Will Doesn’t Control Everything
Not all property is managed or distributed according to a will. Assets with beneficiary designations are outside of your will and probate court controls. Instead, these assets transfer directly to the named beneficiary.
If you have anything beyond a basic estate or family situation, an estate planning attorney is a better option than a DIY will. A solid estate plan has five key elements: a will, trust(s), power of attorney, healthcare or medical directive, and beneficiary designation. Proper estate planning ensures these legal documents support and complement one another and require regular review to accommodate life changes. You are risking problems for your heirs that can cost them time and money. An improper will can devalue your inheritable estate in probate court and is rarely worth the perceived upfront savings.
We hope you found this article helpful. If you have questions or would like to discuss a personal legal matter, contact our office at (949) 418.1083.