Believe it or not, I get a lot of questions about creating a will from a prepackaged program, online, or even by yourself. Is it good enough to do it by yourself, without legal counsel? In most cases, I would say an undeniable and emphatic “NO”! A will is a set of instructions that direct how a person’s property is to be distributed after death. For a will be be valid and effective, it must comply with the legal formalities of the state where you live when you draft the will. Wills do not always need to be drafted by an attorney. Some states, like Nevada, also permit wills that are written in one’s own hand (known as a holographic will) or electronic wills. Each type of will must meet very specific legal requirements. The failure to do so renders the will invalid.
For example, I saw a will recently that was a fill-in-the-blank document. The maker probably purchased the paper at one of those little postal stores or a legal document store. Although the maker filled in the blanks, they weren’t filled in correctly. Names were written in the wrong places and it did not have the required number of witnesses. Unfortunately, the will was invalid.
Sometimes the best wills are handwritten, but failing to follow the legal requirements for a handwritten will is fatal. For instance, most people think they need to have their handwritten will witnessed. In some states, such as Nevada, the presence of witness signatures renders the will invalid. If you don’t do it right, what was the point in the first place?
So, you’re thinking those online, or wills you make from purchased software, is the way to go. Don’t they say the wills created comply with all state laws? How do you know if those companies are telling you the truth? How do you know the law hasn’t changed since the software was developed? You don’t. I was presented with a will by a woman whose husband used one of those online forms. It was invalid – not enough witnesses for my state.
More importantly, wills are not one-size-fits-all. Wills only apply to property the maker owns and which does not pass to others by law or other planning options. Jointly held property cannot be passed by a will. Neither can property that has a beneficiary designation on it.
Finally, wills may not be the best, or the only, option for passing property to your loved ones. If you own real property, such as land or houses, in multiple states, your heirs will need to take your will to every state where you have property in order to get the property transferred to them. Other estate planning tools may be more efficient and less expensive than multiple probate proceedings. If you have assets with significant value, having only a will may result in taxes upon your death, leaving less to your heirs. Use of a will guarantees that probate, a needlessly expensive and time-consuming process, will be required.
Make sure your wishes are met. Seek legal counsel before, or preferably instead of, venturing into the technical world of will drafting. You friends and family will thank you.