DIY Wills - Why Not?

Post by: Lesley Hempfling

Many times at the end of a consultation or during a conversation with a friend I get the question - "Why can't I just use one of those online programs (e.g. Legal Zoom, etc.) to draft my Will and save money?" As a mother of three and solo practitioner, I can appreciate the desire to save money. However, as an attorney, the ease with which non-attorneys can misinterpret these "plug-in" online documents makes me very nervous. It seems that you can purchase any legal document that you need online for the equivalent of a decent meal these days.

While I agree it is essential that everyone have important legal documents in place, such as estate planning documents, I don't think this is an area where it is always prudent to look for the "best deal." Most people believe that they have a "very simple estate" simply because they are not multimillionaires. Unfortunately, whether you in fact have a simple estate is not entirely dependent on your wealth status. Do any of your beneficiaries receive government assistance, or are they disabled? You may need special trusts set up in your Will. Do you have minor children? You will need trusts and guardianship provisions. Do you have religious and/or philosophical beliefs that you hold strongly and want to make sure your Agent under a Medical Power of Attorney adheres to? Do you anticipate a Will contest? Do you have out of state property? These are just a few of the questions that could ultimately turn your "simple Will" into one that requires more attention.

In the State of Texas, probating a properly drafted Will is a very simple, efficient and time effective process. Probating a Will that is not properly drafted could result in a very different scenario - including a loss of estate resources that would have otherwise gone to the beneficiaries and long and expensive "dependent administrations," to name a few. The difference between these two could be as simple as the omission or inclusion of one wrong word in your documents. Another area where I see non-attorneys make mistakes in these documents is misinterpreting the form questions that the online service is asking. For example, do you understand the difference between an Executor and Trustee? What about the roles of your Guardians for your minor children? What about trusts for your minor children - how will these work? How do you customize your documents to meet religious and philosophical needs? Are you including language that is against public policy in your Wills and Trusts? Do you understand how to determine if you have a taxable estate? Beyond drafting the documents, there is also the matter of the execution of the documents. Again, this is an area where non-attorneys are susceptible to errors that could damage the integrity of the documents. Do you need a witness and a notary? Can you just use a notary? Are there rules about who may serve as a witness on these various estate planning documents?

Hopefully these questions will help you make an informed decision about which method is right for you and your family.