Many of us have heard of a “Will” or “Last Will and Testament.” A Will is the most common means for individuals to transfer assets at the time of their death. A Will is an extremely important document as it allows you to name an Executor to distribute your assets and Beneficiaries who will receive them. By doing so, you will avoid default “Intestacy” laws which would appoint an executor and beneficiary for your estate. Over the past few years several “self-help” options have arisen which claims to assist individuals create a Will without the assistance of an Attorney.
While an argument could be made that these services offer some potential benefit, and in some limited context they actually do, in a large majority of cases the opposite is true. The American Bar Association recently sponsored an estate planning panel discussion which reviewed a case where an elderly woman made modifications to her existing will based on suggestions given to her independently from her attorney. The case ended disastrously with certain assets falling outside of her estate plan.
There is an old proverb which states “a man who is his own lawyer has a fool for his client.” Individuals who are too close to a situation, have emotional ties, or are inexperienced may inadvertently make mistakes that an outside Attorney would quickly diagnose and avoid.
One may argue “this is merely an Attorney’s argument to promote the use of Attorneys” and to some degree that is true. The truth of the matter is, however, that these so called “self-help” mechanisms often charge as much, if not more, than an Attorney. Furthermore, online templates completely lack the personal touch and approach an attorney provides and fail to specifically draft an instrument which addresses the client’s needs instead of putting information into a cookie cutter form which may not apply. Often times these forms oversimplify the distribution of your estate leaving room to challenge your desires.
It is advisable to consult with an Attorney about drafting a Will when the following apply:
You have disabled or minor dependent children whom you would need to establish a care plan and guardianship in case of your untimely death;
You desire to disinherit a family member;
You desire to utilize a living or revocable trust to avoid the expense of probate;
You own a business and desire to create a succession plan for the continuation of your business after death;
You are worried someone will contest your estate;
You and your spouse are in a second or third marriage with children and assets from prior marriages; and
You have a substantial estate which may become subject to “death” estate taxes.