In light of the current pandemic, many Americans are becoming aware of the importance of creating or updating their estate planning documents. With the extension of some states’ stay in place orders, it may be tempting to create documents on your own. Whether you are considering writing your own will or using an online “do it yourself” (DIY) document creator, there are many reasons why this is one project you shouldn’t undertake without the help of a professional.
What is a DIY estate plan?
A DIY estate plan is something that you “do yourself” without the advice of an estate planning attorney. Someone who DIYs their own legal documents could be:
A. Handwriting a “will” themselves;
B. Downloading a “fill in the blank” document that they got online; or
C. Using an online document generator that asks pre-set questions
Below are five common mistakes associated with DIY estate plans.
1. DIY estate plans may not conform to the applicable law.
Forms found on the web may claim to conform to your state’s law, but this is not always the case. The laws that apply to estate planning are determined by each state, and there can be wide variations. In addition, if you own property in another state or country, the laws in those jurisdictions may differ significantly, and thus, your DIY plan may not adequately account for them.
2. A DIY estate plan could contain inaccurate, incomplete, or contradictory information.
If you attempt to create a will using an online questionnaire, there is the possibility that you may select the wrong option or leave out important information that could prevent your will from accomplishing your goals. Potential problems could be made even worse when DIY services allow users to insert additional language that contradict other parts of the automated will.
3. Your DIY estate plan may not account for changing life circumstances.
As an example, say an individual creates a will in which she leave everything to her two children. What happens if one of those children passes before her? Will that child’s share go entirely to his or her sibling(s) or will it go to the child’s offspring? What if one of those children accumulates a lot of debt? Should the money or property the indebted child inherits be vulnerable to claims of the child’s creditors? The scenarios go on and on. An experienced estate planning attorney will help you think through the potential changes and contingencies that could have an impact on your estate plan, and help you design a plan that prevents unintended results that could frustrate your goals.
4. It’s easy to make mistakes.
Under all states’ respective law, there are certain requirements that must be met for wills and other estate planning documents to be legally valid. For example, a will typically requires the signatures of two witnesses. But states differ in the application of this requirement. For instance, some states require not only that the will be signed by the will-maker and the witnesses, but also that everyone sign in each other’s presence. In other states, witnesses are not required to be in the same room when the will-maker signs the will, and they can even sign it later!
Similarly, for a valid Power of Attorney (POA), some states require only the signature of the principal (the person who is granting the POA) to be notarized, whereas other states require notarized signatures of both the principal and the agent (the person who will act on behalf of the principal). Again, the risks increase when a professional does not review documents prior to execution.
5. Assets may be left out of your estate plan.
Many people do not realize that a trust is frequently a better estate planning tool than a will because it avoids expensive and time-consuming public court proceedings that would otherwise be necessary to transfer your money and property to your heirs after you pass away. Even if you have created a DIY trust, if you do not “fund” it (i.e., transfer title of your money and property into the name of the trust) it will be ineffective, and your loved ones will still have to endure the probate process to finish what you started. This is actually a much bigger issue than folks realize. They spend countless hours planning and crafting the perfect estate plan, only to put off changing the name of real estate and bank accounts into the name of the trust. As a result, it’s as if the trust was never formed! This is a task with which our team can assist if it sounds overly cumbersome.
We Can Help!
A DIY estate plan can lead to a false sense of security, because it may not achieve what you think it does. If your DIY will is not valid, your property and money will go to heirs specified by state law, and these may not be the people whom you intended. Additionally, laws affecting your estate plan may change. Someone has to stay abreast of the fluidity of the law and update plans accordingly. As you can see, the risk of error is significant.
Call us today so we can provide you and your family with the peace of mind of having an estate plan that accomplishes your goals and provides for your loved ones in the event of the worst.
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