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Should You Write Your Own Will?

The Traps and Pitfalls of Do it Yourself Wills

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Should you attempt to write your own Last Will and Testament? This question has already been asked in the Wills & Estate Planning Forum and aside from my own comments several others, including estate planning attorneys and non-attorneys alike, chimed in with their own feedback. The resounding answer was - NO, do not attempt to write your own estate planning documents, even with the help of books with forms, computer software such a Quicken Willmaker, or online programs such as LegalZoom. Here's a summary of the reasons why not.

1. Estate planning is not one size fits all.

Estate planning forms found in books or online and those generated by estate planning software are specifically designed to cover only the most basic of estate planning needs. These forms are also deliberately kept as simple as possible in order to comply with the laws of all 50 states and the District of Columbia. Just as everyone's fingerprints are different, so are everyone's estate planning needs. What will work for you and your family will most likely be different from what will work for your sister, your parents, or your next door neighbor. The bottom line - a pile of generic forms won't do you or your loved ones any favors.

2. Probate, trust and death tax laws are very different from state to state.

Unlike the federal estate tax laws, which apply to all U.S. citizens, state laws are all over the place when it comes to probate, trusts, estate taxes, gift taxes, and inheritance taxes, as well as the legal formalities required to write and sign valid estate planning documents. There are also many specific state issues that can affect an estate plan, including the definition of descendants, anti-lapse statutes, community property, homestead rights, common law marriages, putative spouses, and elective share laws. The bottom line - I find it hard to believe that a pile of generic forms can properly cover all of these issues.

3. Books, software and online programs contain disclaimers.

Every book or software program about estate planning that I've come across contains this same type of disclaimer - "The information contained in this book/program is not legal advice and is not a substitute for legal advice. For legal advice consult with an attorney." The bottom line - enough said about that.

4. Buyer beware - you get what you pay for!

Several of the comments and links posted in the Wills & Estate Planning Forum ask this type of question - would you perform your own surgery, repair your own car, or color your own hair? While doing things yourself will save money in the short term, the long term result may not be what you expected. For instance, a client and his wife signed generic Powers of Attorney that were obtained online. Unfortunately the wife later became mentally incapacitated and when the client tried to use his wife's power of attorney he came to see me because it didn't work. Why not? Because the generic form was just that - generic and inappropriate for the situation. The bottom line - generic may work for groceries and drugs, but not for estate planning.

5. What is the very bottom line?

Estate planning is not the place to be going it on your own. Just as seeing a dentist to stop the pain in your tooth makes sense, seeing a qualified estate planning attorney who is familiar with the probate, trust and estate tax laws of your state to create and maintain your estate plan makes sense. And don't forget about real estate that you own outside of your home state - chances are the laws there are different from the laws of your home state. The very bottom line - the time and money that you spend on the services of a qualified estate planning attorney will certainly pay off in the long run.
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