It is possible to write a will all by yourself – type up on a piece of paper detailed instructions on the distribution of your worldly goods after your death, without the help of an attorney. But if you are planning anything complicated, this might have all the authority of a grocery list that has been notarized.
“I’ve seen a lot of wills that aren’t executed properly,” said Danielle Mayoras, an estate planner and the co-author of “Trial & Heirs: Famous Fortune Fights!” “I’m not saying you have to pay top dollar (for a lawyer), but people often leave simple things out.”
And when there are mistakes, it is possible that the survivors of the deceased will end up in court, spending thousands of dollars to contest a will.
Another complication is that each state has its own rules. “There isn’t a pat answer I can give anyone, that ‘here’s what it takes to write your own will,'” said Bill McLoughlin, an estate planning attorney and business law professor at Otterbein University in Westerville, Ohio. “Some states recognize oral wills; some don’t. In some states, you have to have the will signed at the end and witnessed by two disinterested parties. But some states require three signatures. “
Even if no one contests your will, the courts still have to follow the letter of the law. Many courts will not validate provisions if the will is not properly executed (with the proper notarization and number of witnesses). Courts will also balk at provisions that do not make sense. Even uncontested wills can remain in expensive probate limbo, said McLoughlin.
Because of the disparate nature of do-it-yourself projects, there are no aggregate statistics on how many people across the country file their own wills each year. But in 2012, Rocket Lawyer, one of the two most popular online legal sites, had 913,000 users draft wills. LegalZoom.com Inc, the other top site, logged 100,000 wills in 2011.
Estate planners, not surprisingly, say that DIY legal software programs and online sites are inadequate for consumers’ needs. “It would be like me doing a tune-up on my car when I’m not a mechanic,” said Mark Doyle, an estate planner in Irvine, California.
But even the online sites tout the value of bringing in a lawyer when things get more complex than directly handing down all your assets to your only living relative.
Rocket Lawyer will introduce consumers to local attorneys at discounted rates. Robert Perez, a lawyer in Magnolia, Texas, who lists his services on the website, said that consumers should have an attorney review any do-it-yourself will, “just to be on the safe side.”
Chas Rampenthal, the general counsel for LegalZoom, said that the site has a plan where customers can pay a tiered pricing of $11.99 to $14.99 a month, allowing unlimited monthly consultations for a lawyer to review a will.
Here is what can go wrong, and how to avoid it:
1. Naming an executor
Designating a trusted individual to carry out your last wishes is a complicated choice. Whom you choose “is the real linchpin to the proper closing of your estate,” said Rampenthal. Do not simply pick someone who cares about you, but someone who either has some financial acumen or knowledge of the law – or better yet, both.
2. Leaving stuff to pets
“If you want to make sure that your pet is taken care of, then don’t leave your pet money in your will,” warns Rampenthal, who explains that in the eyes of the law, the consumer is then leaving property to property. “Instead, you need to provide for your pet’s care through a human.” He adds that the individual should be sure to leave the named caretaker with all of the information he or she will need to care for the pet.
3. Putting conditions on heirs to receive payouts
This can lead to problems in court. “Often the conditions aren’t spelled out with sufficient clarity,” said Rampenthal. Sometimes the courts find the conditions illegal or impractical to enforce. For instance, said Rampenthal, if a parent wants their child to lose 20 pounds or graduate from college before receiving money, “someone has to stick around and make sure that the condition is enforced, and that can mean paying an executor additional fees for a long time.”
4. Designating unusual end-of-life decisions
The main problem here, said Perez, is that some consumers confuse wills with living wills. If you put in your will, for instance, that you do not wish to be placed on life support in the event of a medical emergency, that document is not likely to be read until after you die, or possibly when you are in a lengthy coma. By then, it is too late.
5. Designating guardians for children
The failure to fill out a legal document designating a guardian for your children is a common error, say experts, as is not having a backup, in case the first guardian gets sick or dies.
6. Failure to coordinate beneficiary designations
You may have a life insurance policy or retirement account that has a beneficiary named as part of the process. If you have something different listed in the will, what is on the account takes precedence, said McLoughlin. So you may put in your will that you want your best friend’s son, whom you always regarded as “family,” to receive the funds from your 401(k). But if you die without having designated a beneficiary on the actual account, or have named somebody other than your best friend’s son, the money likely will not get to him. The funds will go to the named beneficiary first, and then will follow a hierarchy through your blood relatives.
7. Funeral instructions
This is similar to the living will confusion: Most wills are not found or submitted to probate until after the funeral has taken place, said Rampenthal. If you are going to put your funeral instructions in a will, Rampenthal advises that you alert your executor – the person you name to handle the details of the will.
8. Dealing with blended families
“It probably won’t be contentious if the family gets along,” said Doyle, but if you know your kids from your second marriage don’t think much of your kids from the first, you may want to consider taking inventory and being very clear about who gets what of your belongings.
“People will fight over scarves and jewelry, even though there’s no value to them. It isn’t the money so much as the principle over it,” Doyle said.
(Editing by Beth Pinsker and Matthew Lewis; Follow us @ReutersMoney or here)