Almost everyone can draft their own will – just like most people can give themselves a haircut – but the question is should they. There are many websites and form books offering a do-it-yourself service, but should you use them? In this article, I will try to show what can (and did) go wrong with non-attorney prepared last wills. However, instead of describing why clients should steer clear from self help wills, I will use true stories from my practice to illustrate the point (certain details changed to protect identities).
Mr. Will Contest:
This individual was married and had two children with his current wife. He also had a child from a previous relationship with whom he had no contact and to whom he wished to leave nothing. His will stated that upon his death, everything passes to his wife, but if she predeceases, to his two children from his current marriage. He was interested to learn that before his will could be admitted to probate, his son would need to be located and given permission to contest the will on various grounds, including that the will was not properly executed. After I explained what the New York law on due execution is, he was shocked to discover that he did not comply with the requirements. His entire will would have been ineffective, and when he passed all of his probate assets would have been divided amongst his wife and 3 children, including the estranged child. It is important to know that just drafting a will is not enough – it needs to be executed according to New York law, which is why estate planning attorneys have special will signing ceremonies in which every step is choreographed.
Interestingly enough, Mr. Witness-Beneficiary had a will drafted by a law firm, but decided to take it home and execute it himself. He left everything to 2 out of his 10 children, and one of the beneficiary children also happened to be a witness of the will. What’s the big deal? In this particular case, New York statute did not allow a beneficiary who was a witness to get her full share under the will, and her share was reduced from 50% to 10%.
This will was a form which had blanks to fill in. It also had pronouns to pick i.e. “he/she/they”. Ms. Fill-In-The-Blanks had a self-made will which left all the pronouns in, making it frustrating to read and interpret. Additionally, she disinherited one of her four children, but when the form asked how many children she had, she only listed three. Such an omission, although innocuous, can be used by a probate attorney to question her testamentary capacity (the mental capacity necessary to make a will) and claim that she could not comprehend who her children were.
Mr. and Mrs. No Tax Plan:
I have often seen “I Love You” wills between couples leaving everything to each other. What I haven’t seen is self made wills with properly drafted credit shelter and marital trusts which allow for maximum tax savings. An attorney can think through the various tax strategies which can help save your estate significant sums of money after you pass. This is especially important in New York State, which imposes its own estate tax, but does not allow for portability between spouses.
Writing your own will is rarely a good idea. Saving a few hundred dollars today can, in many situations, cost thousands of dollars to clean up after your pass. Do-it-yourself wills are notorious for their inflexibility in saving estate taxes, providing for disabled beneficiaries, thinking through when a trust makes more sense than a will, avoiding probate, and avoiding mistakes which make will contests more likely. Additionally, there may be underlying issues, like creditor protection and Medicaid eligibility, which only a licensed attorney can identify and plan around. Each person’s situation, not matter how seemingly simple, is like a fingerprint – unique and special. No form or online service can ask the same questions, provide the same expertise, and stand behind your will like an experienced estate planning and will drafting attorney. Remember that when there’s a will, there should be an attorney.
For a consultation with an estate planning attorney, contact us at 347-766-2685.
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