Why Shouldn’t I Make My Own Will?
Written by Jim Worthington on October 19, 2020
“I just want my will to be simple. Lawyers make things too complicated, use language I don’t understand, and charge too much.” I’ve heard sentiments like these all too often during my career. Unfortunately, they cause some people to avoid making a will, which creates problems discussed here. These same sentiments lead others to make their own wills, with the problems discussed in this article.
Trying to bypass cost and complexity concerns is understandable. Unfortunately, it is naïve to assume that it doesn’t take expertise to make sure one’s last wishes will be clear and honored.
Some people recognize this but still avoid lawyers after doing a little online research and finding companies that claim to simplify the estate planning process. For a modest fee (typically $100-$300), these DIY companies provide a step-by-step questionnaire that pulls together a basic will or trust from the answers given. Essentially, these companies are automating the drafting of these important documents, but only at the most rudimentary level.
But these one-size-fits-all questionnaires don’t address individual family situations. And drafting is only a small piece of the estate planning process. As one of my clients said recently, Jim “helped us see perspectives and consequences we would never have imagined without him.” Lawyers are called attorneys and counselors at law because of that counseling role.
Let’s look at a few scenarios that highlight the value that experienced estate planning lawyers can provide and discuss a couple of problems that can arise when people try to draft their own wills.
Experienced Lawyers Add Value
As you consider your estate, you may be worried about a situation that seems unique to your family. However, when you share your concerns with an experienced lawyer, you’ll likely find that they’ve seen something similar. For example, parents might want to leave a portion of their estate to an estranged child (it’s more common than you would think). But they’re understandably worried about burdening their other children with the difficulties and stress involved. An experienced lawyer could draft language to give the administrator of the estate (often a sibling) guidance about taking steps to locate their sibling, waiting an appropriate length of time for them to come forward, and instructing what to do if they can’t be found.
Another type of guidance that an attorney can offer is advice about the numerous ways of structuring trusts. An online company might give users the option of setting up one trust that all beneficiaries (say, three children) would share. Having all the children “dip from the same pot” — it’s even called a pot trust — might seem, at first glance, to be the simplest and best way to provide for the family. Parents could reason that they’ve spent unequal amounts on their children according to their needs all along, so why not continue that practice?
Most trust professionals, however, agree that a pot trust breeds resentment. Inevitably, one child will seem (or be) more needy than the others, taking more than their share would have been if the money had been divided equally. The unequalness of the distributions can bring up unresolved childhood resentments and create additional ones. An experienced lawyer can look at the family’s financial situation and dynamics and suggest the best way to structure a trust that will keep all heirs as happy as possible, both financially and emotionally.
A common problem with do-it-yourself wills is that people don’t always get them signed and witnessed properly. Often, the most convenient witness to a will is a family member or caregiver. (That’s especially true for someone quarantined during a pandemic like our current COVID-19 crisis or who is in such poor health that time is of the essence.) If, however, a family member witnesses the will, and if they would inherit more under than the will than if no will existed, they can be considered a competent witness only if they waive their inheritance.
A lawyer will always have disinterested witnesses available who will be able to testify in court if any questions ever arise. Even during this time of remote will witnessing and notarization (available in Kentucky but not North Carolina), you can count on an estate planning lawyer to have worked out crucial details like this ahead of time.
My experience is that people who write their own wills often make things more complex — and sometimes more expensive — than if they had just bitten the bullet and hired a lawyer in the first place. For example, a Kentucky man typed up a will on his computer prior to going in for a scheduled minor surgical procedure. Unfortunately, he passed away while in the hospital. In his DIY will, he named his former lawyers in another state as co-personal representatives of his estate. However, Kentucky law limits the eligibility of nonresidents to serve as personal representatives to “[a]ny nonresident of legal age who is as to the decedent, ward, or incompetent, related by consanguinity, marriage, adoption or the spouse of such person so related.” In plain English: an individual who lives in another state can’t be a personal representative of a Kentucky estate unless they’re related by blood, adoption, or marriage to the person who passed away.
At the initial probate hearing, questions arose about the eligibility of the out-of-state co-PRs. The court postponed the hearing for two weeks for briefs to be filed about the eligibility issue. The extra briefs and the two-week delay in opening the estate surely cost the estate hundreds, if not thousands, of dollars in extra legal fees.
The decedent could have prevented that delay and those fees by working with an experienced lawyer in the first place.
It’s so important for your family that you have a will. However, don’t jump online and do it yourself. Consider your family and financial situation and then find an experienced lawyer to guide you through the process. Ask up front about the fee to make sure it’s reasonable. It may not be as inexpensive as you’d like, but it should be appropriate for your circumstances. And after working with an experienced professional, you’ll have the peace of mind that you’re looking after your family in the best way possible after you’re gone.