When to Call the Lawyer …
When to Call the Lawyer: When You Need a Will.
According to a recent Gallup poll, a majority of Americans (66%) do not have a will. While each state has its own rules governing how assets are distributed if someone dies without a will, these rules are inadequate for most people.
You Need a Will
In New York, if you are married with children at the time of your death and you die without a will, your assets will generally be distributed as follows: the first $50,000 will be distributed to your spouse, and the remainder will be split equally between your spouse and your children. This distribution scheme may be problematic for many reasons.
First, most people want their spouse to inherit all of their property, especially if the children are young or if all of their children are children of that relationship.
Second, the law provides for children to receive their inheritance outright if they are over the age of 18, or upon attaining the age of 18. While an 18 year old is technically an adult, most parents would agree that even the most mature 18 year old is probably too young to responsibly handle even a modest inheritance.
Third, property will be distributed based on value, not type. This means that your property may be distributed among your heirs in a manner that you would not have intended – for example, your jewelry may be distributed to your son, not your daughter, or family heirlooms from your relatives may be distributed to your spouse, not your children. This also means that your heirs may become joint owners of your property – for example, your spouse may end up owning ½ of the marital home, with your children (who may not be your spouse’s children) owning the other ½.
Finally, the statute sets forth the individuals who may serve as administrator of your estate – including creditors! – and, while the courts give priority to certain individuals (i.e. your spouse), any of the individuals set forth in the statute may petition for letters of administration and attempt to persuade the court why they should be in charge of your estate.
A properly drafted will can eliminate all of these problems. A will sets forth who will inherit your property and how (outright or in trust) and nominates the individuals who will administer your estate as executors. Perhaps most importantly if you have children, a will nominates the individuals who will act as guardians of your children in the event that their other parent predeceases them or otherwise cannot act as their guardian while they are minors.
So now that you know why you need a will, how do you go about getting one? Answer: call your lawyer.
You Need a Lawyer to Draft Your Will
When it comes to legal documents, the old adage, if you want a job done right, do it yourself, is terrible advice. Legal documents are complicated and nuanced, and if they are not prepared correctly, the results can be disastrous. Trusts and estates attorneys are specially trained to prepare wills to ensure that they are accurate and effective, and the cost of hiring a lawyer to prepare your will is nothing compared to the stress and expense to your loved ones when they discover that the will you prepared on your own contained errors unknown until after your death.
Online Forms – You Get What You Pay For (and Sometimes A Lot Less Than What You Pay For)
In the past decade, websites offering Will drafting services (such as LegalZoom, Rocket Lawyer and Willing) have gained traction with the more enterprising (and frugal) individuals among us. However, these websites are not a recommended alternative to having a lawyer prepare your will.
As other commentators have pointed out, LegalZoom’s own disclaimer should give customers pause about using a LegalZoom form to prepare their own Will. LegalZoom warns its customers that “the legal information on this site is not legal advice and is not guaranteed to be correct, complete or up-to-date. LegalZoom is not responsible for any loss, injury, claim, liability, or damage related to your use of this site or any site linked to this site, whether from errors or omissions in the content of our site or any other linked site … In short, your use of this site is at your own risk.”
To put it another way, LegalZoom is telling you that LegalZoom forms may contain errors, that these errors may result in damages and that those damages are your problem.
LegalZoom also warns customers that 80% of people who fill in blank forms to create legal documents do so incorrectly. So between human error and website error, it seems that little peace of mind can actually be purchased online.
However, even if a $69 Will does give you peace of mind, it shouldn’t, because the real danger of using a website to prepare your Will lies in the fact that errors are unlikely to be discovered until after you have died. At that point, your heirs must either live with the error or commence a proceeding in court (a lawsuit, essentially) to fix it. And if you thought a Will was expensive, wait until you see how much a lawsuit costs.
Furthermore, Wills prepared via websites are also arguably easier to attack. In New York, and many other states, a Will is entitled to certain presumptions of validity when the Will was prepared by the testator’s attorney and when the execution of the Will was supervised by an attorney. If neither of those factors is present, a disgruntled family member may find it easier to invalidate even an error-free Will.
Your Lawyer Does More Than Fill Out a Form
At first blush, it may not seem that drafting a Will is all that difficult – you name your beneficiaries, you pick an executor and voila, you have a Will. However, Wills actually need to do more than name beneficiaries and appoint an executor – for starters, they need to account for contingencies in the event that the testator’s assets change or beneficiaries predecease the testator, they need to nominate successor fiduciaries in the event that the named executor cannot (or does not want to) serve, and they need to direct how taxes should be paid.
And that is just the beginning. There is no one-size-fits-all Will, because no one’s life looks just like another’s. Lawyers know what questions need to be asked, what contingencies need to be accounted for. Because most lawyers who draft Wills also represent estates, they can anticipate problems that may arise in the administration of an estate and suggest ways to avoid such problems, thus saving your heirs the headache (and attorney’s fees) of dealing with problems after you have already passed.
The bottom line is that, if you are going to make a Will (which you should), you should make sure that it does exactly what you intend for it to do, and the best way to achieve that, is to call your lawyer.