7 Overlooked Risks of a DIY Will
As a lawyer, you may have a potential client who is trying to decide whether or not to draft their will without your assistance.
According to a survey by Caring.com, 6 out of 10 Americans do not have a will or living trust. Forty-seven percent of respondents said that they had not completed a will because they "hadn't gotten around to it yet".
But your client needs your help to ensure this legal document identifies their wishes and is enforceable in a court of law. Otherwise, they run the risk of letting the general terms of their state's laws determine the fate of their estate.
Read on to learn 7 overlooked risks of a DIY will for your clients.
1. Ambiguous Terms
A DIY will may include ambiguous terms which will make it harder to determine the testator's intention at the time of preparing it.
When a testator's intent is up for debate, this means that the beneficiaries and other interested parties may be in an expensive dispute, litigating these probate issues.
These legal fees can cost tens of thousands of dollars or more, depending on the size of the estate. The longer that a DIY will is being disputed in court, the fewer assets will remain in an estate and in the hands of a testator's beneficiaries.
2. Not Enforceable Under Your State's Law
It is crucial that your clients execute their will the right way to ensure it is enforceable in their state. Otherwise, state law governs who will be the beneficiaries of their estate.
To execute your will the right way, many states need at least two witnesses to sign your will. This ensures that they can attest to the fact that you were the one who signed your will. There also may be other state-specific rules that limit who can witness your signature.
For example, a witness of your will may not be able to also be a beneficiary of your estate. This helps to limit the chances that your will has been unduly influenced by a witness.
When you are executing a DIY will, you run the risk of writing in a term or executing the document in a way that may not be enforceable later.
3. Lack of an Objective Drafter
A DIY will can be risky because the testator and the author are often the same people.
These roles should keep kept separate because if the same person performs both, emotions may sway decision-making. This can result in decisions that are not legally sufficient and will not hold up in a court of law.
Having an attorney like you prepare a will is important because your client can be confident in the fact that you have the knowledge and experience to act objectively and in their best interest.
They will also discuss potential problems they foresee with the terms and conditions of the will or living trust. This way you can draft a better document that allows their loved ones to avoid litigating the terms of the will.
4. Contradictory Terms
A client may draft their DIY will with terms and conditions that contradict other areas of the document.
Contradictory terms will raise questions about the drafter's intent at the time. This creates an issue in court about what the testator may have wanted. This means that beneficiaries may spend lots of time (and money) so that a court can decide the answer.
When the smoke clears and the beneficiaries receive a decision, they may not be happy with the result. Furthermore, the size of your client's estate may have shrunk a lot because of the costs incurred during the probate process.
5. Not Written for Changing Tax Laws
It's crucial that your client writes their will so that it takes advantage of the tax laws enacted at that time.
For example, your client's DIY will dated in 1995 may use current law for that time. But fast forward to the present day and the laws have changed a lot over the last 23 years.
Not having a will that is up to date with the most useful tax laws can have a significant impact on the size of an estate. This means that beneficiaries may walk away with less than they would have if the will was up to date.
A DIY will also may use canned language or other standard terms. This may result in overlooking significant opportunities to limit an estate's tax liability.
6. Not Written Based on Changes in Your Life
A will should be up to date based on where the testator is from a financial standpoint at that time in their life.
If your client drafts a will on their own, they risk not including all their assets. These assets left out of the will may go through distribution contrary to how a testator wants them to be.
For example, if a client receives a significant inheritance after they prepare their will, this is very important. That's because these assets should be part of the will to ensure each one is going to the right person(s).
7. Every Estate is Different
Another risk of a DIY will is that it may contain general terms that are not the best for your unique financial situation.
The truth is, every person's financial situation is different. This means that there is no "one size fits all" way to prepare a will.
Hiring a professional to draft a will helps identify the areas most important to clients. It also helps them to carry out their wishes.
Wrapping Up: Avoid the Risks of a DIY Will
Writing a will on their own can be tempting for your clients because it saves them the cost of hiring an experienced attorney.
But the money they save on the front end may cause their loved ones to spend more on trying to determine a testator's intent later on.
The Practical Planning System automates document preparation software. This helps legal practitioners like you to draft wills and trusts in a more efficient way.
Contact us today to learn more about how our software will help you prepare the documents your client's want to meet their estate planning needs.
