What Could Possibly Go Wrong With a DIY Will?

By Juli Findling, Paralegal

Writing a will is one of the last things people want to think about, especially during a time of crisis.  But for those who do, it’s not about facing their immortality head-on, but rather embracing the need to plan proactively for their loved ones.

With a will, we can ensure that those we leave behind have a clear action plan regarding what we leave behind.

Discount do-it-yourself online templates claim that preparing your will can be easy, cheap, quick, and effective. Fill out a short form, and, poof, you’re done!  What could go wrong? The answer is: LOTS!

Here are just a few of those things:

INVALID LANGUAGE

Language and requirements for wills vary from state to state, so making a one-size-fits-all solution is virtually impossible. Improper or unclear phrasing and the different parts and pieces of your estate (your property, money, assets, etc.) that are subject to probate, are biggies.  But those are just a couple of things that can create havoc in the lives of those you may have intended to help upon your passing – including wasted time, money, and worst of all, distribution of your assets counter to your intent.

Robert F. Morris of Stark & Stark, in his February 10, 2020 article, Unintended Consequences of a Do-It-Yourself Estate Plan, details a case where a Testatrix (a woman making a will), Mary Jane Eaton, used a pre-printed legal form to write her will, “carefully” listing all of her assets at the time and to whom they would go when she passed away.  Unfortunately, she failed to include a clause to address what to do with her residuary estate (those remaining assets not specifically listed and given to someone named in her will). Ms. Eaton later inherited some real estate from her sister. When Ms. Eaton passed away, her brother, a named beneficiary and Executor under her will, presented the will to the probate court.  What ensued was lengthy and costly litigation, which went all the way to the Florida State Supreme Court, over who would get that inherited property (Aldrich v. Basile).  Ultimately, a portion of it passed to relatives not even mentioned in Ms. Eaton’s will. 

IMPROPER EXECUTION

Executing (signing) a will the right way can be tricky, and mistakes happen often – even with adequate instructions and care. We’ve seen wills witnessed (wittingly or unwittingly) by beneficiaries of a will, those where witnesses also acted as the notary, others where the will is witnessed but not notarized (and later the witnesses die or cannot be located by the court), and wills that are signed without witnesses present at all. This is just a short list of will execution errors.

When the Testator passes, scenarios like these could cause their estate to get hung up in the court system for an extended period of time, or worse, invalidate the will altogether, at which point the state’s laws of intestacy take over. What results could just be the furthest thing from the decedent’s original wishes.

CHANGES IN TAX LAWS

Navigating the sea of ever-changing state and federal estate tax laws requires knowledge and attention, for which the majority of us don’t have time or expertise. It’s easy for the uninformed Testator to miss out on ways to minimize their estate’s tax exposure.  Hoffman & Associates are aware and mindful of current tax law and can ultimately save you much more than the cost of drafting your own estate planning documents.

INFLEXIBILITY

Our lives are in a constant state of flux – children are born and then later become adults, people divorce, others die, laws change, fortunes are made and lost. Wills need to accommodate as many of these fluctuations as possible without requiring the persistent need to re-write them.  As in the case outlined above, the fact that the Testatrix simply inherited some property which triggered an expensive and time-consuming family battle in the courts, highlights the gaping potential for error when using a do-it-yourself will.

LACK OF KNOWLEDGE ABOUT TITLING ASSETS

We recently had clients whose parents kept information about their financial accounts “private” and “diversified”, with the best of intent. They owned three homes in three different states, and squirreled money into many separate kinds of financial accounts with ten different institutions. Some of these accounts named beneficiaries with “rights of survivorship” or had TOD (transfer on death) designations, thereby allowing them to pass outside of probate, but others did not. Upon the parents’ passing, which happened within a period of months, as is often the case, our clients were left to unravel what was in the accounts and the beneficiaries of those assets.

With financial institutions under tighter scrutiny and bogged down by bureaucracy and regulations, uncovering and transferring these accounts turned into a costly and lengthy process. Countless hours were spent making phone calls, filling out confusing and lengthy transfer or account set-up forms, obtaining medallion signature guarantees for two estates and three surviving children. Five years later, the two Estates continue in probate courts in three states. 

A simple and typically free consultation with an estate planning attorney would have shed light on the situation well in advance of the parents’ passing, and giving them direction on how to title the assets effectively to avoid the pitfalls of their existing arrangement.  

CONCLUSION

While you may think you’re saving a few dollars drafting your own will, the headache and legal fees that can incur will far exceed any amount saved. At Hoffman & Associates, our estate and tax planning attorneys make certain that all wills – from the basic to the most complex – are drafted and executed properly, while promoting and safeguarding your most important asset, your loved ones!