Can I “Do It Myself” and write my own will?
With all the software out there to walk you through creating your own will, or watching the old movies as the man on his deathbed dictates his “Last Will & Testament”, it is often asked, what about DIY wills? Can I write my own will? The answer legally is yes, you most certainly can. However, at a minimum, we’d recommend a legal review. Any errors, no matter how small, open your heirs up to a fight in court. Fighting over a will (and we’d wager that you know at least one person angry, or in a fight, over a will) is called probate. We are probate litigators, and we’ve seen how lack of appropriate planning can create huge family rifts and can result in assets being distributed in a way that the would never have been what was wanted originally.
Often when it comes to drafting a will people make the mistake of thinking that the end product is just the will (document) itself. NOT TRUE! Think about when you buy a house. Are you buying the end product – the nails, the wood, the labor that created it – or are you buying the vision of the architects that captures the sun just the right way on the front porch, the wisdom of the builder that thinks of the lifestyle that the home will afford you? A home is the end result of many people’s professional experience creating an environment for you to live in – a home is also a combination of building materials, meeting code requirements, and more. When we draft a will, it is not the will itself that has the most value. It is the cumulative experience of seeing people make and keep money their entire lives, and managing their expectations as to what happens after they pass on.
Any article on the internet reflects the laws at a specific point in time. At this specific point in time, there is a lot of political activity over changing tax laws around wills and trusts. These are uncertain times, especially for those with larger estates. It is the experience of an experienced Wills & Trusts attorney, that you just don’t get from a piece of software that makes a will that keeps the best interest in the estate in place.
It is especially important to have a professionally created will in place for small-business owners, parents of children with special needs or couples where one partner is facing any form of health challenge or disability. In the case of people with health challenges, their general well being and welfare will likely be a priority in the will. The answer to who should be the caregiver, how and when or would he/she end up on Medicaid should all find their way into your will.
If you have remarried, and have children from a previous marriage, the intricacies of taking care of the children, and your current spouse can sometimes prove very challenging. Challenging from the perspective of simply figuring out how you want your estate divided, and challenging from a legal perspective, especially if the children are minors, and their birth parent, your former spouse, is still actively engaged with the children. Any prenuptial agreements should be reviewed to ensure that the directives in the will, do not attempt to overstep previous agreements, opening the door to probate.
Doing your will by yourself is not wrong, or bad. However the more complex your life situation, and the greater the size of your estate, the greater the risk when you attempt to DIY your will.
We are Probate attorneys. We see almost every day the pain families go through when they fight out a will in court. Frankly, it is heartbreaking, and often totally avoidable. We also witness regularly the astonishment of those who rely on an inheritance, when they see proceeds of the estate being consumed with taxes and going to the New York State government, as opposed to ensuring that family is taken care of.
We highly recommend HAVING a will – whether DIY or professionally crafted. As life becomes more complex, the need for quality legal support in updating your will becomes more and more important.