"Using a do-it-yourself will is like pulling your own tooth with a pair of pliers instead of going to the dentist." - Timothy E. Kalamaros, Esq.
Approximately 55% of American adults do not have a valid Will or estate plan in place, according to the American Bar Association. Of course, individuals who do not have a valid Will push potential burdens onto their families upon death, including:
- A lengthy and burdensome probate process (a court process meant to pay off the decedent's creditors and distribute the remaining assets to family members). The probate process can drag on for years, bringing stress to family members already trying to cope with the passing of a loved one.
- The inflexibility of state law imposing exactly who, and in what amount, receive the assets of the estate. Without a Will, state law decides who gets what.
- Family members left fighting over who receives items of sentimental value (think of rings or maybe the kitchen hutch that's bee passed down for generations).
With the large number of Americans without a Will—coupled with the consequences occurring when an individual dies without a Will—it is no wonder why many Americans often turn to do-it-yourself documents, many of which can be found in the vast, turbulent sea that is the Internet.
Though it is possible to create a legally valid Will without the assistance of an attorney, the important questions is whether it is wise to do so. Hiring an attorney brings two key safeguards to clients doing their wills and estate planning: (1) attorneys ensure that the substance of your legal documents fit your and your family's needs and desires; and (2) attorneys ensure the process by which your documents are executed is legally valid and capable of withstanding later attack. Let's first discuss the latter of the two safeguards-process.
In order for a will to be legally valid, it must be properly executed under state law (generally speaking, this means that the Will is signed and properly witnessed by other other individuals). Each state may differ on what actions constitute the proper process by which a Will is executed-something a do-it-yourself Will can't tell you!
There are a few different ways a Will may be properly executed under state law (which is outside the scope of our discussion here), and what’s more is that the differing ways to execute a Will bring differing levels of legal protection from later attack by individuals claiming foul. For example, a relative may come out of the woodwork claiming that the Will was improperly executed because of undue influence or a lack of capacity. This can lead to a decedent’s will being declared invalid by a court, resulting in assets being distributed in accordance with state law and not the decedent’s desires.
This is where attorneys bring value to the process. An attorney will ensure that your Will and estate planning documents are executed according with state law, while also ensuring that your legal documents afford the greatest legal protection against later attack by others.
In addition to ensuring proper process has been followed under state law, hiring an attorney to draft your documents means your Will and other estate planning documents will fit your and your family’s desires. Do-it-yourself (DIY) wills are not personal to you and your familial situation—in this way, DIY wills are like a one-size-fits-all baseball cap.
The problem is that all families—and their unique situations—are different. And if an individual wants a Cinderella-story ending upon their passing (one that does not leave their family fighting or stuck in court), they’re going to need a glass slipper Will and estate documents that fit just right. DIY wills cannot give you the glass slipper that fits just right because they were not made for you—they were drafted for the masses.
Hire an Attorney
Additionally, DIY wills cannot answer the important questions you have. Questions like, “Do I have to list where every single one of my assets goes? Can I let my children decide who gets what personal items? How do I avoid having to update my Will if I acquire more personal items or change my mind as to who gets what? What should I do about my retirement and bank accounts? How should my real property be titled? What if I have a child with special needs? How do I plan for my incapacitation? Is a Will or Trust better for me? What if I have a blended family with stepchildren? How do I pass on my business?”
The Internet is full of do-it-yourself Will and estate planning documents. However, using these documents comes with dangers. Attorneys offer value to their clients by drafting estate planning documents to fit their client’s individual needs, while also ensuring proper process has been followed under state law when executing these documents.
Contact our firm with any questions you have about you or your loved one's will. You can call our Helena at 406-449-4829, our Bozeman office at 406-58-8822, or by filling out a contact form here.