Legal work can be very costly, and clients with simple financial and family situations might be tempted to draft their own Will. Others may be private and don’t want their attorney to know the details of their affairs. It is important to remember that just because you can draft your own Will, doesn’t mean you should. The reality is the American legal system is extremely complicated. Highly intelligent people who are incredibly successful in their chosen field, can still lack the legal expertise to competently draft their own legal documents. This is more common than you might think. We have seen examples of this from a variety of generations and net worths. Believe it or not, the effects of a bad Will can be worse than dying without a Will.
Sometimes when clients attempt to draft their own estate planning documents, they turn out to be unenforceable. Other times, they miss key provisions necessary for proper administration. Such mistakes can leave families disappointed and frustrated with the administration process after the loss of a loved one. These issues can usually be avoided with the help of competent legal counsel.
What Makes a Will Valid?
While it may appear that a self-authored Will would effectively communicate the intent of the grantor, they are usually difficult to administer. Ask yourself: Do you know what is required for a Will to be enforceable in your state? Can you be sure you have included all the necessary components?
Most states require a Will to be signed by the grantor, and at least two witnesses, in the presence of a notary. Sometimes this notary can be a witness, but some states require the notary to be in addition to two witnesses. Every state is a little bit different, so a quick Google search may not accurately teach you to draft an enforceable Will in your state.
Drafting a document that is considered valid and enforceable by the Court is only half the battle. Individuals who manage to successfully draft a legally enforceable document will still likely miss key provisions necessary to effectively implement their estate plan. If you have spent any time around attorneys, you will quickly realize they are trained to predict every possible scenario in which things could go wrong. And there are A LOT of ways things can go wrong. For example, laws can change, adult children get divorced, beneficiaries fall victim to addiction or disability, or charities could disband. These are all scenarios with consequences that can be mitigated through quality legal drafting, but they are likely not provisions that the average person would think about or know how to include. A competent estate planning attorney will be familiar with these provisions and can prompt you to consider scenarios you may not have thought of, saving much headache down the road.
Handwritten Wills
Some individuals elect not only to draft their own Will, but also to handwrite it. Also known as a “holographic Will,” a handwritten Will may not require witnesses or a notary, but it is even more difficult to enforce and administer. To begin, handwriting can be difficult to interpret and there is a high likelihood that a combination of poor handwriting, ink smudges, or simply old age of the documents will render pieces of it illegible. Further complications include the inability to prove the signature was not forged, and questions about the mental capacity of the author at the time the Will was written. While such documents have been upheld in court over the years, more often than not, they do not meet the legal standard for administration.
Internet Wills
With the development of Artificial Intelligence, there are exciting possibilities on the horizon for the legal profession. There is now software that can interpret and analyze your estate plan and several websites advertising automated legal drafting. However, the technology has a long way to go before it comes close to matching the skills of an attorney. Be wary of the fill-in-the-blank forms and online Will generators. They are cheaper than hiring an attorney for a reason. Though they may be legally valid, they are prone to being over simplistic and may lack the ability to draft more nuanced provisions that fit your individual circumstances. Plus, there could be security issues if the information you input isn’t encrypted. There truly is no substitute for having a conversation with a professional that has your best interests in mind.
You Get What You Pay For
What you don’t spend preparing your legal documents, your beneficiaries will spend administering them. A Will has to be probated by the court and an attorney must file certain pleadings to open and close the probate administration. Many attorneys won’t agree to probate a Will that was not drafted by a licensed attorney for all the reasons previously mentioned. Others may charge a premium because they know the estate will be more difficult to administer. In the end, there is a good chance it will cost more money to administer a bad Will, than to both draft and administer a good one. The latter will be much less stressful for your loved ones.