Nowadays, do-it-yourself (“DIY”) projects abound. However, writing one’s own Last Will and Testament should definitely not be on one’s to-do list. Individuals often think that a last will and testament is a simple, basic document, but this is usually not the case. A DIY will can lead to complications and issues that may result in added costs and aggravation in the long run. More importantly, such a will may result in one’s wishes not being carried out.
A DIY will is a mistake for two reasons. First, when an individual writes his/her own will, he/she does not get to review, understand and plan with an attorney regarding all the legal, financial and tax issues that may arise. Secondly, in addition to substantive errors, an individual who creates his/her own will is exposed to potential defects in the actual execution process.
A will is one of the most important documents an individual will execute. The drafting and execution of a will is only part of the process. Meeting with an experienced attorney to discuss one’s donative intent as well as the repercussions of certain decisions is a critical component. Often an individual focuses solely on the will, neglecting to look at the big picture to reveal potential legal issues relating to his/her estate. Some of the important items that should be reviewed with an attorney are as follows:
Is the will going to be used to govern the distribution of the individual’s assets? Assets of a decedent are distributed according to how the assets were legally held. If an asset has a joint owner or a beneficiary designation, this overrides any provision in a will. Many individuals are not aware of this and are oftentimes surprised that their wills do not always control the final distribution of their assets. Therefore, it is important for an individual to review a list of all his/her assets in order to make sure that those assets that are jointly held or have beneficiary designations comport with the wishes expressed in the will.
Unknown heirs – The Surrogate’s Court requires that an individual’s heirs be notified of the will being submitted to the court in order to give the heirs the opportunity to object to the will. Therefore, if one’s heirs are unknown or are persons with whom the decedent did not have contact, the executor may need to spend a great deal of time and money to locate those heirs. In these cases, a living trust is usually a better option than a will. Transferring one’s assets to a validly executed living trust will ultimately avoid the requirement of going through Surrogate’s Court, thereby removing the cumbersome requirement of locating unknown heirs.
Estate tax issues – For those with potential estate tax issues, it is important to implement a plan to minimize federal and state estate taxes.
Beneficiaries with special needs – For those individuals with children or other intended beneficiaries who may have a disability, it is important to review how a gift will ultimately affect the beneficiary, and to create a method of distribution to avoid unintended consequences. For example, the share of a disabled beneficiary may be transferred to a supplemental needs trust (also referred to as a ‘special needs trust’) contained in the will so as not to affect the disabled beneficiary’s continuing eligibility for government benefits.
Spendthrift beneficiaries – For those beneficiaries that are likely to squander an inheritance, an attorney can incorporate a so-called ‘spendthrift trust’ into the will.
Once an individual has reviewed and addressed all of the potential legal issues surrounding his/her estate, an experienced elder law attorney is the best person to draft the will. The attorney is familiar with the necessary components of a will and the necessary terminology. For example, many DIY wills neglect to for provide a “residuary clause” or a catch-all clause to give instructions regarding the distribution of any other assets which may not have been specifically provided for.
The ceremonial execution of a will is also critical. A will must be duly executed according to statutory requirements in order for it to be valid. Accordingly, attorneys follow specific procedures when wills are executed. The law provides for a rebuttable presumption that all requirements are met if a will is signed under the supervision of an attorney. This is extremely important. Furthermore, aside from ensuring that the will is executed per statutory requirements, an attorney is also responsible for confirming that the person signing his/her will has “testamentary capacity,” or is of sound mind and memory, and is not unduly influenced or under any duress or coercion. An attorney must assess these potential issues to ensure that the will can withstand a challenge based on undue influence, lack of testamentary capacity, duress or coercion.
There are numerous reasons why it is not prudent for an individual to draft his/her own documents. A Last Will and Testament should be prepared by an experienced attorney to avoid the potential problems that a DIY will can create.
Ronald A. Fatoullah, Esq. is the founder of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner- advisor of Advice Period, a wealth management firm, and he can be reached at 424-256-7273.