Entering The Wilderness: The Dangers Of Drafting Your Own Will.

With all the information available online today, it's no surprise that many people are opting to draft their own estate planning documents. In the case of a short form power of attorney or an advance health care directive, most states already make it a straightforward process for individuals to create their own legal documents, often from sample forms offered by government sources. Many hospitals and HMOs offer advance directive forms, as well. The Minnesota Attorney General's site also offers downloadable PDF files for those two instruments.

But in the case of drafting your own Last Will and Testament, things get murkier. There are numerous nuances, quirks and hidden traps in the law that can create "landmines" for the unsuspecting. Yet, some people jump into DIY anyway, hoping to save a little money. Others don't want to go to the trouble of finding and talking to a lawyer. Some just like doing things themselves and assume a Will is a simple document. After all, there is an abundance of forms for writing your own "simple Will." There is also an abundance of services that allow you to cobble together a Will online.

Some people might be intimidated by the thought of trying to do plumbing work in their house by themselves, and they would wisely hire a licensed plumber to do the work. Yet that same person might not think twice about saving some money by drafting their own Will.

One can imagine the mess that would ensue if the DIY plumbing job goes sideways. With a self-made Will, the risk isn't a flooded house or soaked carpet, it's a mess that involves hardship and possible financial disaster for loved ones many years down the road. Because the risk with a homemade Will seems distant it's easy for someone to overlook the potential consequences. Even more tragic is the fact that many do-it-yourselfers are intelligent, educated people with significant assets.

There are certain tasks that should be performed by a professional with knowledge and experience in order to be done correctly. Crafting your Will is one of those tasks. Do-it-yourself Wills are risky, they jeopardize the future of your hard-earned assets and they jeopardize the future of your descendants who would some day inherit those assets, and perhaps rely on them.

Of course, there is no such thing as an "airtight" Will, and no estate planning instrument is guaranteed. However, an experienced, licensed practitioner can design a Will that greatly reduces the chance of it being invalidated or contested later.

Once in a while I get inquiries from someone who, despite my best efforts of warning them of the risks, nevertheless still insists on writing their own Will and they just want me to "give it a look." I will decline representation in those cases. Reviewing someone's homemade Will is just asking for a malpractice action.

The trouble with templates.

✦ Simple mistakes can render the Will invalid. If the Will is signed or dated improperly, contains confusing or ambiguous language, or is signed without proper witnessing, your document could be invalidated by the probate court, or successfully contested by a would-be beneficiary.

✦ It may not adequately reflect your needs. A Will template cannot possibly take into account your specific situation and circumstances. A template may not provide the flexibility to allow you to anticipate future events or changes to your family, assets, etc.

✦ A DIY Will template may overlook laws of your state. Many forms attempt to be a "one size fits all" solution for several states, and they become inadequate for any of them. The template may miss key legal concepts of your state or overlook subtle yet important caveats in the statutes. The law, both statutory and from case law, is constantly changing. Do the authors of those forms keep up to date with all 50 states and territories?

✦ Templates are usually geared toward simple situations. In reality, there is no such thing as a "simple Will." There are complexities that a DIY form cannot anticipate. You may wish to add specific provisions in unambiguous language, like a special gift, care for pets, or perhaps disinheriting a family member. Poor wording in a template can lead to misinterpretation or invalidation by the court.

✦ Dealing with an invalid Will can take years and cost thousands. If all or part of your Will is deemed invalid by the probate court, it may take a lot of time and money to untangle the mess. Also, the court may apply laws of intestacy to an invalid Will (treat the Will as if it never existed). Your assets may end up not being distributed according to your wishes. 

✦ A legal battle over your estate will subject your loved ones to needless suffering. Your family will already be dealing with grief. Do you want them to be fighting over your stuff as well? 

✦ With a poorly-drafted Will, your wishes may never be fully realized. You want your loved ones to be taken care of. You may also wish to keep certain assets in the family. Relying on a Will template may place that in jeopardy.

 Is it really worth it?

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A good estate planning attorney can help you get started with a plan that is tailored to your wishes and goals, and help protect your property for your loved ones.