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Should You Write Your Own Will?

Published May 20, 2019

By Bernard A. Krooks, Esq.

Recently, several clients have asked whether they could write their own will.  I am sure that many more have thought about this, but haven’t asked.  I think the better question to ask is:  should you write your own will?  After all, there are several online services available to help and how complicated can it be, right?  Let’s discuss some of the things that can go wrong.

Drafting legal documents, including wills, is complicated.  All the t’s have to be crossed and all the i’s must be dotted.  Thus, if you are not used to doing this, you might make a technical mistake. The court files are full of cases in which someone didn’t get enough witnesses, didn’t use the right language, or forgot to notarize something.  Many of these wills which have errors are drawn up by non-legal professionals.  For example, all that “boilerplate” language you see in your will is there for a reason.  Part of a lawyer’s job is to try to anticipate and plan for any possible contingencies or complications that may occur regarding your estate plan.  For example, your child might marry someone you don’t approve of, your child might predecease you or become disabled, or your children might not get along with one another or have creditor problems.  While none of us want or expect these types of circumstances to arise in our family, unfortunately, we have no control over some of them.   So, while this “boilerplate” language may seem unnecessary or cumbersome, it is there for a reason.

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More importantly, a will is just one component of a complete estate plan.  Perhaps it makes sense for you to have a trust to avoid probate, provide for the orderly management of your assets if you become incapacitated, or protect your assets from the catastrophic costs of long-term care.  None of this can be accomplished by a will alone.  Moreover, have you thought about who will make financial or health care decisions for you if you were to become incapacitated?  These matters can be addressed through a properly drafted durable power of attorney and health care proxy.  Failure to do so could result in unnecessary and costly court proceedings.  Also, the decisions that are made for you may not necessarily be what you would have wanted if you had the capacity to decide for yourself.

Another thing that people fail to realize is that their will controls only the disposition of property in their name alone at the time of death.  Assets with beneficiary designations, or held jointly or in trust for others will not pass in accordance with your will.  They will pass to the designated beneficiary or the other person listed on the account.  Thus, even if you draw up a perfectly drafted will, your assets may not go to the people you think or want.  Life insurance and retirement accounts are particularly affected by this provision.  Thus, it is critically important that the overall estate plan be coordinated with all beneficiary designations to ensure that your assets go to the people you want.  This is extremely difficult to accomplish by purchasing an online form or doing your will yourself.  It requires estate planning experience and knowledge.

While the documents are important, the primary reason for consulting with an experienced estate planning attorney is that you will benefit from his/her analysis and advice.  The documents drafted will properly reflect your wishes after you have considered the possible scenarios.  More importantly, if you make a mistake while drafting your own will, it likely won’t be uncovered until you aren’t alive.  Then, your relatives will have to hire a lawyer at far greater expense to try to make things right.  Often, this cannot even be done and your family is stuck with an estate plan that does not reflect your wishes.

You might ask yourself, can I write my own will and then bring it to a lawyer to review?  Interestingly, this might cost you more money.  Much of a lawyer’s time is not necessarily spent on drafting the actual document, but rather, on figuring out what needs to go into the document.  To review, modify, and edit a document that the lawyer did not draft might actually take more time than to simply draft the document itself.  Moreover, lawyers are not in the document business.  We are in the business of helping clients solve problems.  First, we need to figure out what your objectives are and then suggest constructive solutions for you to consider.  Only after we have a plan, do we start drafting documents.

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