Can You Make Your Own Will

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Jul 29, 2019, 09:00am EDT |

Why Writing Your Own Will Is A Bad Idea

Christine Fletcher

I write about successfully managing your trusts and estate.

This article is more than 2 years old.

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Why would someone draft their own will? An attempt to save money? Possibly, but the people I see who write their own wills can usually well afford to pay a lawyer. Perhaps it is ego driven – they think, "I'm smart, I can figure this out." Or maybe, with all the do-it-yourself information that is available nowadays, folks just want to do it themselves because they can. They see it as a legal version of the Mad Libs we used to fill out as kids. Sometimes I think people simply watch too many episodes of Law & Order.

These are educated, accomplished individuals with significant assets to protect, and yet they think nothing of drafting their own estate planning documents. They do this at the risk of wreaking havoc down the road when their estate is administered. Not to mention the increased legal fees that their heirs will pay. They may have saved a few bucks now, but their heirs may incur large legal bills when they need to unravel the mess left behind.

Often when I review these self-drafted wills, I point out that they would make a great law school exam question. Sometimes my client will not even let me see what he drafted. When she does reluctantly produce the document, I often talk about the risk involved. For instance, if I needed to change an electrical outlet in my house, I could pay an electrician to do it, or I could do it myself with some instructions I found online. The benefit of doing it myself is that I saved a few hundred dollars. The risk is that I burn my house down or die of electrical shock. The risk is probably not worth the cash I saved. Here are a few other instances where the risk was not worth the money saved:

· Bill did a fairly good job drafting a simple will. However, one of the most important aspects of a will is how it is signed and whether it is self-proving. Self-proving means that the will has an affidavit signed by a notary public stating that the will was properly signed and witnessed and that it is the will of the person who signed it. Each state has its own laws for how wills must be signed in order to be valid. If the will is not properly executed, it could be declared invalid by the court. If it is not self-proving, the heirs will face challenges in getting the court to approve the will. Unfortunately, Bill's will was not self-proving. His heirs all got along and did not dispute the will itself, but they ultimately spent a lot more in legal fees probating his estate because of the additional hoops the court made them jump through.

· Another estate involved an elderly woman who had supposedly asked her home health care aid to draft a will for her on a popular do-it-yourself website for legal documents. Coincidentally, the will left all of the elderly woman's assets to the home health care aid. The day after the elderly woman died, the home health care aid was in the local probate court trying to probate the will. Since the will was not properly executed, it was thrown out by the court and the elderly woman's assets passed to her brother who was her closest living relative. If the elderly woman really did want her assets to pass to her home health care aid, her intentions were thwarted by a do-it-yourself will.

· In another situation, an accountant signed a prenuptial agreement with his new wife providing for her in the event of his death. The accountant then took it upon himself to draft his own will and trust. The estate plan was ambiguous and not consistent with the prenuptial agreement. After his death, his wife and children fought for years over what the estate plan meant and its impact on the prenuptial agreement resulting in large legal bills for each side.

· Sam, an intellectual property attorney, drafted his own will, which is akin to a dermatologist performing heart surgery on himself. Sam's self-drafted will left real estate in trust for his children, but did not include any instructions for the trust. The will also left assets to people who were not properly identified. Needless to say, the will was litigated for years, resulting in legal fees well over six figures.

There are many tasks you can and should do yourself, but estate planning is not one of them. Work with your lawyer, and if you do not have an estate planning lawyer, reach out to your wealth manager or accountant for referrals. You may save a few bucks now by drafting your own will, but it will cost your family in time, aggravation and legal fees far in excess of anything you saved. That is not the kind of legacy you want to leave when you are gone.

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Christine Fletcher