I routinely provide public speaking presentations on estate planning, wills, trusts, elder law, and estate settlement. After every presentation, I will answer a series of questions about a wide variety of questions related to estate planning. In nearly every presentation, there is a person who asks, "Why Do I Need a Lawyer to Draw Up a Will? I Believe I Can Do This Myself."
I understand that a lot of people want to become "do-it-yourself" experts. There are people who believe they can manage their own money in the stock market, there are people who believe they can do their own home repairs, and there are people who believe they can be their own auto mechanic. However, when people say to me that they do not need a will to draw up a will, I urge severe caution!
Many people feel that buying these Do-It-Yourself Will Kits will allow them to save on attorney costs. However, many of these Do-It-Yourself Will kits are not written with the state specific laws in mind. Furthermore, these Do-It-Yourself Will Kits do not take into account required language that only an attorney, knowing your specific situation, could properly advise you.
For instance, let's say that you are married with two children. However, you want to leave $1,000 to your uncle. What if your uncle predeceases you? Would you want your uncle's share going to his children or other heirs? Or, would you want your uncle's share to go back into the pot to be shared by your wife and children? Without a properly drafted and executed will, you could find yourself in a situation where your uncle's share could go to his children and other heirs, which may not be what you would have wanted.
Another aspect that consumers who purchase Do-It-Yourself Will Kits fail to realize is that these wills are often not executed properly. For example, in Tennessee, for a will to be valid it must be signed in the presence of two independent witnesses (defined as witnesses who are not inheriting under the will), a self-proving affidavit is attached, a will signing ceremony is conducted, and the person signing the will is competent to sign and under no undue influence or duress.
In my law practice, I have seen many of these Do-It-Yourself Will Kits where the signatures were not properly signed, were not witnessed, and many times, were not even notarized. The damage here is that the will is not valid and the person's estate will pass through the laws of intestacy (as if you died without a will).
One of the most popular cases is the case out of the State of Florida. In this case, a woman named Ann Aldrich used a form from E-Z Legal Forms to complete her last will and testament. Unfortunately, the form that Ms. Aldrich used did not have a residuary clause. As a result, a portion of her estate passed by intestacy (the laws that control if you die without a will) and passed to her two nieces. However, this was not until the case was litigated all the way up to the Florida Supreme Court. You can read the entire article by Clicking Here.
The following is a quote from the opinion in this case:
“I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”
I can only imagine what the legal fees were in this case for this case to be litigated up through the Florida Supreme Court.
The fact remains that the use of online forms to complete what a consumer considers to be "basic legal documents" will prove to be costlier than the cost of the legal form that was purchased online. I do believe that the proliferation of these online Do-It-Yourself Will Kits will result in an increase of estate litigation over the next ten to fifteen years. However, only time will tell.
Daniel Perry is an Estate Planning, Business Law, and Tax Attorney in Franklin, Tennessee. Daniel and his wife Catherine, and their children William and Landon, live in Spring Hill, Tennessee. Daniel graduated from Holy Cross College and Purdue University, as well as received his law degree from the University of Dayton School of Law. Daniel has devoted his entire practice to the area of estate planning, business law, and tax law, he continually writes, publishes, and speaks publicly on topics in the area of estate planning and elder law, and his book, Estate Planning for Tennessee Families, is being published and can be obtained Free of charge by any Tennessee Families interested in developing a plan that works for their family. Dan can be reached at [email protected] and (615) 490-0477 for public speaking requests.