Writing your own Last Will and Testament
may seem like a good idea because that way you can say exactly where you want your property to go after you die. But unfortunately where you want your property to go after you die is only one important part of what a will needs to address. Aside from this, the laws governing how to make a will that is valid vary from U.S. state to state as well as across foreign countries. Therefore, extreme caution should be used when attempting to write your own will, even with the help of books with forms, computer software such a Quicken Willmaker, or online programs such as LegalZoom. Below is a list of reasons why you should not write your own will.
1. Estate planning is not one size fits all.
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Will forms found in books or online and those generated by estate planning
computer 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 estate planning forms won't do you or your loved ones any good.
2. Probate, trust and death tax laws are very different from state to state.
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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
, 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 law 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 - a pile of generic forms simply cannot cover all of these state law issues.
3. Books, software and online programs contain disclaimers.
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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 - even books and programs about estate planning recommend that you seek the expertise of an experienced estate planning attorney
4. Buyer beware - you get what you pay for!
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Would you perform your own surgery, repair your own car, or color your own hair? While doing things yourself may save time and money in the short term, the long term result may not be what you want or expect. For example, a few years ago I worked with a client who obtained generic Powers of Attorney
online and he and his wife simply signed them. Unfortunately the wife later became mentally incapacitated and when the client tried to use his wife's Power of Attorney to take out a mortgage on their jointly owned home, he came to see me because he couldn't secure the mortgage using the generic Power of Attorney form his wife had signed while she was still competent. Why not? Because the generic form was just that - generic, and unfortunately not properly written to secure a mortgage under Florida law. The bottom line - generic may work for groceries and drugs, but not for estate planning.
What is the very bottom line on Do it Yourself Wills?
Estate planning is not the place to be doing it yourself. 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 will and 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 is that the time and money you will spend on the services of a qualified estate planning attorney to create your will and estate plan will ultimately be well worth it in the long run.