In the last week alone I have seen a number of people asking the question on the internet “Is it okay to prepare my own Will using an online Will service”. I have been shocked at the amount of misinformation that has been posted in reply.
To be clear, I am defending an interactive online Will service like the one at USLegalWills.com, I am not suggesting that you should prepare your Will using a blank form DIY Will kit that you could buy in Staples. The blank form kits are a disaster, but the online Will services are an excellent mid-ground for somebody who doesn’t want the inconvenience and cost of a lawyer, but still needs to have their Will in place.
These are some of the most egregious, incorrect warnings that I have seen in the last week.
1. You must use a lawyer
Written by a lawyer in response to a question on Quora.
This lawyer is claiming that in a non-emergency situation, you MUST get your Will written through a lawyer. People then contact us asking whether a Will created through our service would still be legal, because they have heard otherwise from a legal professional. There is nothing written in any legal statute decreeing that a lawyer must be used to turn a document into a legal Last Will and Testament. If the document is signed in the presence of two independent adult witnesses, then it will be a perfectly legal Will.
2. A lawyer will certify that you are of sound mind
This firm of Barristers and Solicitors is claiming that by signing the Will in the presence of a lawyer they will certify that you are of sound mind. As far as I am aware, lawyers do not receive any psychiatric training and in their 20 minute meeting with you are highly unlikely to be able to discern the state of your mind. They certainly would not be able to “certify” this. Most challenges to Wills based on the capacity of the testator are on Wills written in the presence of a lawyer, for example the $350M estate of Huguette Clark.
3. An online Will can be challenged
Any Will can be challenged, but there are five specific claims that can result in a successful challenge;
- the person making the Will didn’t know what they were doing,
- they were put under pressure to sign something they didn’t want to sign,
- the Will was created fraudulently,
- it was not signed correctly,
- there was no provision for dependents.
A Will cannot be challenged on the basis that it was created using an online Will service. If these five grounds for a challenge are addressed, then a Will created using an online service would be as acceptable to the courts as one created by a lawyer.
4. It doesn’t take into account different laws
This is actually a reasonable claim against blank form Will kits that are rarely prepared on a per-State basis. But just like tax preparation software, interactive online Will services first ask for your State of residence and then tailor the service to the laws of that jurisdiction. In reality the most significant variation in estate planning law across different States is the handling of assets when a Will is not created (the person dies intestate). There are also significant differences in Living Will and Power of Attorney laws, but for Wills most States do not have wildly different laws.
5. You won’t sign it correctly
Often lawyers claim that each State has its own particular signing requirements. This is in fact untrue; all States require that the document is signed in the presence of two witnesses who have nothing to gain from the contents of the Will. If you do this, the signing requirements of every State in the US have been met. There is nothing complicated about the signing process – clearly, the witnesses cannot be beneficiaries in the Will (nor should they be the spouse of a beneficiary). We also recommend that each page is initialled by you and your witnesses.
6. You may miss something
There is actually an argument that you are less likely to miss something if you prepare your own Will using an online service. Firstly, you can take your time; the service at USLegalWills.com gives you up to one year to make sure that the document exactly reflects your wishes. There is a good chance that if you prepare a Will with an estate planning lawyer, you may not remember everything in your 20 minute meeting with them. Supposing a week later you are reminded that you always wanted to include World Vision in your Will. You will have to return to your lawyer and probably incur an additional fee. Furthermore, stepping through an online Will service actually makes you think about each step and each appointment. You are actually more likely to include everything that you need to including digital assets and personal information that you didn’t want to share with your lawyer.
7. You wouldn’t take out your own appendix
This is where the legal profession starts to get desperate, by making a non-sensical comparison between surgery on yourself and writing your Will. Don’t believe us?
“You wouldn’t take out your own appendix so….
you shouldn’t write your own Will
You shouldn’t take care of your own divorce
You shouldn’t represent yourself in court”
Writing your own Will, in most cases, is more straightforward than filing your taxes. Clearly in some situations you may need legal advice and we would send people to a legal professional if the circumstances dictate. But most people can prepare their Will without paying hundreds of dollars in legal fees.
8. You get what you pay for
Actually you don’t. People come to us having been quoted anything up to $1,500 to prepare their Will, but more commonly it is around $800. Others come to us having already paid this but they now need an update and have been quoted an additional $800 for the changes. However, the stories that make us feel most satisfied are when people come to us because they need a Will in a hurry; before a trip or surgery, and use our service with the intention of having a “proper Will” drafted after the event. They pay the $800 a few weeks later only to find that their new Will is word-for-word identical to their temporary one. The reason of course is that lawyers use software to prepare their Wills, and we use the exact same software, but give you direct access to the software.
9. Everybody messes these Wills up
In fact, the vast majority of people create a perfectly well drafted Will using our service. There are many examples of mistakes made with blank form DIY Will kits, including the famous case last year with a senior, Ann Aldrich who attempted to list all of her assets in a blank form without including a residual beneficiary. But this type of mistake is impossible with an online Will service like the one at USLegalWills.com as it guides you through the process and covers every scenario.
10. The courts do not accept an online Will
A Will created using the service at USLegalWills.com will look exactly the same as one created through a lawyer’s office. When it is submitted to probate,it will be accepted in exactly the same way as your expression of how you would want to distribute your estate.
It is understandable that people become afraid of the law and forget that the rules are in place to protect you. We have people ask us “I didn’t put my middle initial in my name, does that make my Will invalid?”. This demonstrates how scared people have become of taking care of a simple task like preparing a Will, and how we end up with 65% of American adults not having a Will, even through everybody needs one.
Don’t let these scare tactics put you off, and prepare your Will today.
Tim Hewson is one of the founders of USLegalWills.com.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets, and has contributed to articles in The New York Times, NY Metro Parents, U.S. News & World Report, and other leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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